Director of Public Prosecutions v Harle

[2019] VCC 982

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00786

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL HARLE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 June 2019
CASE MAY BE CITED AS:	DPP v Harle
MEDIUM NEUTRAL CITATION:	[2019] VCC 982

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Ms K. McFarlane	McFarlane Criminal Lawyers

1HIS HONOUR:  Michael William Harle, you have pleaded guilty to one charge of making a false document, one charge of using a false document and one charge of attempting to pervert the course of justice.  Those crimes carry maximum penalties of ten years, ten years and 25 years respectively.

2You are now 36 years of age, you have pleaded guilty at the earliest opportunity and I have to give some credit for remorse in that circumstance.  It seems to me there is a certain degree of justification with all this but I will give you the benefit of the doubt in regard to that.

3In so far as the utilitarian benefit of that plea of guilty is concerned, of course you must get the benefit of that.  You do have a significant criminal history, albeit not extending over a significant period of time, with more the number of charges and the consequence of them which I will go through in a moment.

4The circumstances of the offending are that you have been in a relationship with one Jessica Harle which ended around about 2010.  You have one child together who is 11 years of age. During 2018 you were sentenced in relation to two separate matters and placed on two community corrections orders that were imposed at the Korumburra Magistrates' Court on 11 May 2017, and the Dandenong Magistrates' Court on 14 February 2018.

5I have now been appraised of those matters and I am aware of what they were about.  A condition of each of those orders was that you submit to drug screen testing as directed by the Wonthaggi Justice Service Centre, those tests are collected and analysed by Dorevitch Pathology exclusively.  You had a case manager who oversees and monitors compliance with the two CCOs, and in September of 2018 you sent four false test results to her, each of those results said that you had not been imbibing drugs, in fact they were clean. 

6She made enquiries, it turned out that those - I will not have to go through the detail, but they were false, they had been simply prepared by you and presented by you as proof that you had in fact gone for drug screens and that you were in fact not using.

7The situation is that Dorevitch say that even though you were placed on 14 February 2018, on that second CCO with the drug content you never turned up at all.  Police in any event executed a warrant on your address on 19 December 2018.  You and your partner were home, you were served a copy of the warrant, the police took a laptop and found copies of the false documents.

8They searched a folder of family law court paperwork which I have still got some concerns about, but in any event inside that were copies of the report and a Federal Law Court affidavit that had been affirmed by you on 10 July 2018.  That affidavit said that you had been complying with the drug tests requiring and that you had - I do not know whether these were annexed to the affidavit or not, but there were drug screening tests that had all come back clean, and you had documentary proof of that. 

9You repeated that assertion in another affidavit on 26 October 2018, where you said 'I've completed all random drug screen requests from the ICL', that is (Independent Children's lawyer), 'I have emailed all results to him this year which have all come back clean.'

10There was a further quote, a further reference in that affidavit, 'I have done everything this court has asked of me, that is random drug screening with clean results'.  You of course had done no such thing, you never even attended for any of these tests. 

11The situation is that the matter regarding the Family Court has to be regarded as very serious indeed.  The situation here is, as I understand it in the submissions put on your behalf was, that effectively your relationship with your former partner, at least in part, dissolved because of your drug use.

12The Family Court is clearly very much concerned with the welfare of children, one of the aspects that they look at, common sense would tell anybody this, is whether the child is to be placed in danger or at risk, people who are using drugs would be regarded as placing children at risk.  It has been put on your behalf that your obsession was to see the child, I would have thought that if your obsession would have been to see the child, you would have been much better advised to have done something about your drug use.

13When you spoke to Corrections early on, in around April 2018, when you were supposedly doing the drug tests, you were found not to need counselling.  Clearly you had lied to them and you have clearly done nothing about your drug use except tell lies.

14What you have in fact done, I do not know that this seems to be grasped by you, is that the situation is that rather than eliminate the danger to the children you have endeavoured to pretend it did not exist so that the Family Court would give you access.  It appears that that has been successful.  I am advised that you have now seen orders giving you some access to the child, I do not need to go into that here. Whether that continues is anybody's guess, but the fact of the matter is that, and I think I said during the course of the plea, what you have done strikes at the very heart of the family division of the Federal Court, and is in my view inexcusable.

15As I said before in so far as remorse is concerned, there seems to be some sort of innate justification about all this, material seems to blame somehow or other your original partner for all this but this was your decision.

16I accept that you do suffer from depression and obviously this report from Dr Cunningham which I have read and I take into account, this was not a one off impulsive situation, this was a considered, prolonged and perjurious course of events, where you had ample time to withdraw from it if you so choose. 

17It clearly caused the application of general deterrence and specific deterrence, whether you do it again or not I have got no idea, however people must be persuaded that the integrity of the court, especially where children are concerned, has got to be protected.  Accordingly it also calls for the application of denunciation and it must be an appropriate punishment.

18A significant gaol term is inevitable, you have now been in custody for some 188 days.  The prior convictions, obviously really only date from about 2015, and I am prepared to accept in these circumstances that they do relate to the use of, even though there seems to be a significant amount of trafficking of drugs. How you could have got through that period of time using to the level you were and fooling everybody including Corrections by saying you weren't drug affected, you were tired, is a real concern.

19In terms of ascertaining the length of that sentence, I then looked at matters personal to you.  It is my view that because of the - I am really talking about the charge of 'pervert the course', that Verdins is of no assistance to you in this situation.  Moral culpability is obvious.  What you do have is, somewhat surprisingly after all this, strong family support.  I accept that you do have employment lined up.  You will be in gaol whilst your new son has his first period of life.  So you will come out to positive factors that should enable you to turn your life around.

20Your counsel urged that your prospective of rehabilitation were good, I do not really see how that argument is put, you have done nothing about it in the past, you have been given ample opportunities by the court and even the prospect of not having your son could not get you off drugs.

21In any event I can only sentence you for what you have done, and I accept that your original behaviour was due to drugs, and this behaviour, I am not going to go through again.

22The prospects for rehabilitation, I really have got no idea.  The risk of you reoffending if you continue to use drugs is obviously going to be high.  I have taken into account the submissions put before me by your counsel, this is a situation where it matters not which school you went to or anything else. 

23Your overall circumstances were compounded very much by a severe back injury which you sustained in 2009.  You received a payout for that, and you were originally placed on Oxycontin for a period of two years. You became addicted to that and after that you became addicted to other substances.  I am not going to revisit, the pleas have been done on your behalf in the past, but it is put on your behalf that the drug addiction came about because you needed to deal with chronic pain.

24That is the scenario, pleading up we call this and I can really take it no further. 

25Accordingly, on Charge 1, four months; Charge 2, four months, concurrent.  Charge 3, 30 months, two months of Charge 1 to be served cumulatively upon Charge 3, gives you 32 months.

26In your situation where there may be some prospect of your rehabilitation, I will give the authorities the opportunity to assist that if they can and accordingly we will give you a minimum term lower than would otherwise have been the case.  There will be a minimum term to be served of 16 months before you be released, I direct that 188 days be reckoned as having been served under this sentence.

27Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty you have been sentenced to be in prison for a period of three and a half years with a minimum term of two.

28Any other orders I have to make?  We will worry about that forfeiture when you have had a chance?

29MR GRAY:  Yes, Your Honour. 

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