Director of Public Prosecutions v Hill
[2021] VCC 1363
•16 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00492
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDRA HILL |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 16 September 2021 | |
CASE MAY BE CITED AS: | DPP v Hill | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1363 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McCarthy | Office of Public Prosecutions |
| For the Accused | Ms K Ljubicic | James Dowsley & Associates |
HER HONOUR:
Circumstances of the Offending
1In June 2019, you, Alexandra Hill, pleaded guilty in the Magistrates’ Court to a single charge of handling stolen goods. Your legal aid lawyer, on instructions, told the court that you had recently commenced employment as a barista. Presciently, as it turned out, the magistrate was not prepared to act on your word alone, and asked for evidence of employment. She adjourned the hearing to give you the opportunity to provide additional materials, including proof of employment. You had lied to your lawyer, and through her to the court, about being employed. You were not, you had a choice. You could have abandoned reliance on employment as a mitigator, or you could have fabricated evidence of employment. You chose the latter course.
2On the adjourned date, you provided your lawyer with a letter of employment. The letter falsely asserted it was written by your boss, who had employed you for the last eight weeks at the aptly named Little Rogue Café. It asserted that the two of you had been friends for three years, that you had disclosed the offending before you were retained or employed and had shown remorse, were regretful for your actions and intent on taking responsibility for what you had done. It asserted you were of good character and a good employee and feared the consequences of having a conviction recorded. It promised the author's continuing support and expressed confidence that you would not reoffend. The letter had the Little Rogue logo on it, and invited the reader to call the mobile telephone number provided, for confirmation or further information.
3The plea was adjourned again, this time for police to consider their attitude to a diversion. Your hapless lawyer provided the Little Rogue letter to the police for consideration. They investigated, and the falsity of the letter was soon discovered. The name and the telephone number provided in the letter were traced to your housemate. She, although telling police that she was aware of the letter and apparently acquiescent in the provision of her details for reference checking, denied writing it. She nominated another person, who in turn denied involvement.
4When interviewed, you exercised your right to silence. So it is, that you are now before me to be sentenced for one charge of attempting to pervert the course of justice, by putting false information to the Magistrates’ Court, in that little Rouge letter, in an attempt to secure a more advantageous sentencing outcome for the dishonesty offence you had committed and for which the magistrate was to sentence you.
5At the time that you provided the false reference to the magistrate, and attempted thereby to pervert the course of justice, you were on bail for further dishonesty charges. As a result, you have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.
Objective Gravity of the Offending
6The maximum penalty for this offence is 25 years’ imprisonment, which is one measure of how seriously offences of this nature are regarded. The maximum penalty for committing an indictable offence whilst on bail is a term of imprisonment of up to three months or a fine.
7Relevant to an assessment of the gravity of your conduct, in respect of the major charge, are the following features. The offending took place in a curial context, that is, it was an attempt to deliberately present false evidence to a court, a court charged with responsibility for sentencing you for other criminal behaviour. It was done in order to get yourself a more lenient outcome. It was premeditated, and care had been taken to give the letter a veneer of legitimacy, by amongst other things, using the business logo, a (false) phone number, and an offer to provide confirmation of the truth of what was asserted in the letter, along with a handwritten signature and date added to the typed text. The letter went beyond mere proof of employment, falsely attesting to your good character, capacity to maintain employment, other positive qualities as a person and employee, and to your supposed frankness in revealing the dishonesty charge, your remorse and your determination to make amends. Although the charge refers to the date the false reference was provided to the court, the attempts to deceive, and thereby to obtain an advantage in sentencing, and which are relevant to contextualising the date alleged of the offence and the date on which the letter was handed to the court, extended over some time. You had ample time and repeated opportunities to think again and, if not to tell the truth, at least not to perpetuate and add to the lie. It began with the false statement on the first presentation of plea submissions on 25 June 2019. You then produced the false letter, which repeated and expanded on the original lie, in the false written reference tendered on 16 July 2019, and which was then sent to the police the following day, in support of what by then, had become not just an application for a non-conviction outcome, but for a diversion.
8Ms Ljubicic said you dug a hole with the first lie and trapped, kept digging. If that is the correct characterisation, it is no mitigator. You did not have to tell further and more elaborate lies. What may have started as an impulsive, not wholly thought through little lie, became a cynical, calculated and premeditated series of steps. You had time and opportunity along that path to reflect and consider on the wrongfulness of your actions and to stop. You did not. You made the lie bigger and more elaborate, as the promise of that even greater advantage, diversion instead of a non-conviction outcome, loomed. And you involved others in the lie. Even if your housemate did not write the letter, she knew and allowed her name and phone number to be used and agreed if rung, to play her part in misleading the court. It does not matter who actually typed the letter and who thought of what to put in it. It is your conduct in knowing what was in it and putting to the court in the hope of getting that advantage for yourself, that is, as I just said to Ms Ljubicic, the gravamen of your offending and the basis on which you fall to be sentenced.
9This conduct cannot be excused or explained by youthful folly. You were 26 and you have lived independently, away from your parents, away from home, away from the country that you were born in and brought up in since the age of 18, when you came to Australia from New Zealand.
10In R v Buscema [2011] VSC 206 the Victorian Court of Appeal said:
[6] Offences of attempting to pervert the course of justice are conceived of as striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition. The offence is broadly defined, however, and so may be committed in a wide range of circumstances, and the particular circumstances of each case, inform the gravity of the offending. Circumstances which bear upon the assessment of the nature and gravity of the particular offending, and so upon the sentence to be imposed, have been identified as including… The consequences which the offending was calculated to avoid; the time for which the deception was maintained and whether it was actively repeated or persisted in, or merely allowed to continue; whether the deception involved some other person, either as an accomplice or as a victim; whether the offence was spontaneous or premeditated; whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that.
11As the recitation of facts and my analysis of them makes clear, of the circumstances bearing on the assessment of nature and gravity of the offending, and therefore on the sentence to be imposed, identified in Buscema, almost all apply here. In Buscema itself, a false statement intended to provide an alibi for an accused facing drug trafficking offences was provided to police. The court described that as relatively serious, although falling short of the most serious category.
12The charge you were facing was a much lower one than the drug trafficking charges faced by the accused in Buscema. That alibi notice though was provided to police, whereas your reference was provided directly to the court. The benefit for Buscema was a desire to avoid conviction. You had pleaded guilty, but the benefit you desired was clearly to get a lesser penalty, either a non-conviction result or a diversion. I consider, although this is clearly not on all fours with Buscema, given the matters identified by the court in that case, as relevant to the assessment to the gravity of the offence, that this too is properly to be regarded as relatively serious, although falling short of the most serious category.
13I do not accept therefore Ms Ljubicic’s submission that this was low end of the scale offending for this offence. I do not consider your motive for the offending to be a mitigating factor. You were motivated solely by self-interest, by your desire to get a lesser penalty for your original offending. You were trying to avoid responsibility for your own dishonesty, and by further dishonesty, to gain a sentencing advantage for yourself. Particularly in pleas of guilty, courts rely on counsel telling them, on instructions, matters that are relevant to assessing the offender's circumstances as well as the objective seriousness of the offending. It is a compact of trust that is established between the courts and the legal advisers of people charged with offences that can greatly reduce the amount of time and costs involved in presenting pleas in mitigation.
14Lying to your lawyers and therefore having your lawyers lie on your behalf to the court is a very serious thing and deserves to be condemned. Lying to a court to get a lesser penalty when you are already facing punishment, is something that cannot be condoned and must be roundly condemned. It is clear therefore that subject to considerations of your personal circumstances, deterrence, denunciation and just punishment are significant sentencing factors I must consider.
15What then is relied on in mitigation? What are the personal matters relevant to you that reduce the sentence that might otherwise be appropriate, having regard to the objective gravity of the offending? I take into account first, your plea of guilty, and the early stage at which it was entered, that is at committal mention. I take it into account for its utilitarian value, in advancing the administration of justice, by acknowledging your wrong, saving time and cost of further investigation at committal and trial.
16It has particular utilitarian value in advancing the interests of the administration of justice in these Covid times, because of the considerable delays that the court is facing in dealing with criminal trials because of the inability to convene juries, whilst the pandemic rages. I also accept that your guilty plea denotes an acceptance of responsibility. It stands in contrast to your attempt to shirk some responsibility, certainly by way of penalty for the charge that was before the magistrate. The weight to be given to your plea, made in Covid times, is therefore greater than it would have been otherwise. I am not however satisfied that the plea of itself, or in combination with other matters, is evidence of significant remorse. Despite the reference in the report of Ms Ferrari, to which I will refer in more detail later, to your expressions of remorse, nothing has been put to indicate to anything other than being sorry for yourself in the circumstances in which you now find yourself , having been caught and facing so much more serious a charge and outcome, than you were facing for that minor dishonesty charge.
17There is, in my view, no evidence that has been presented to the court of any contrition or attempt to change your ways, to address the underlying causes of your offending. That is not an aggravating factor. You are not punished for that. It just means that there is an absence of that additional mitigating factor where a plea can be said to be further evidence of remorse. The main thrust of the plea submissions put by Ms Ljubicic, was the extent to which the sentence should place emphasis on your rehabilitation. She ultimately submitted that a non-custodial sentence, specifically a community correction order should be imposed. The prosecution on the other hand submitted that a non-custodial sentence was not in range. In fact it went further and said, the sentence of imprisonment involving a head sentence and a non-parole period was within the appropriate range.
18I was provided with the sentencing statistics for offences of attempt to pervert the course of justice. In most cases, they show that a custodial sentence has been imposed. In only 28 per cent of cases was a non-custodial sentence imposed. Hence the focus on the plea to seeking to characterise the offending as low level in objective gravity and moral culpability, a submission which I have already rejected, and on the weight to be given to rehabilitation. So reliance was placed on your personal circumstances, particularly your mental health and substance abuse, the role that played in the offending, your limited criminal history and what was described as previous and ongoing attempts of rehabilitation.
19Having referred to the sentencing statistics, I am of course very conscious of the fact that each case, as the court said in Buscema, has to be considered on its own particular facts and circumstances. No two cases are exactly alike and statistics are no more than that, a rough guide of where the general range of sentencing falls.
Personal Circumstances
20Turning then to your personal circumstances. You were, as I have noted, 26 at the time of the offending. You do not have any prior convictions or findings of guilt against your name, but not only did this offending occur in the context of sentencing for another offence, you have since been charged with further, serious offending involving trafficking. Whilst you are contesting the pending charges, and so, you are entitled to and I give you the full benefit of the presumption of innocence in respect of those, the trafficking allegations are of sufficient gravity to be dealt with, if you are committed for trial, in this court. The trafficking is alleged to have occurred not only whilst you were on bail for these charges, but also whilst you were subject to a community correction order, which was ultimately imposed for the original dishonesty charges that led to the production of the false employer reference that brings you before me. You have spent 20 days on remand in respect of the trafficking charges, before being released on bail in respect of the trafficking charges in May of this year.
21For someone who attained the age of 26 before facing a court, you are now facing what can properly be described as an uncertain future. Ms Ferrari assessed your risk of reoffending as moderate to high and Ms Ljubicic characterised your prospects of rehabilitation as guarded.
22How did you find yourself in this situation? The short answer is, a life marked, since leaving school at the end of Year 12 in New Zealand, by aimlessness and substance abuse.
23You were born in Christchurch, grew up there, left home and moved north for a short time after leaving school, before going back to Christchurch at about the time of the earthquake and finally, then moving to Australia at the age of 18. You report in New Zealand during your school years, behavioural and learning difficulties, and also being subjected to a serious and traumatic experience during your high school years. Your description of your family life was one of instability. Your father apparently has a significant history of alcohol abuse and you were exposed to the consequences of that. You report witnessing his violence and aggression, mainly directed towards your mother and brother. There were a number of separations between your parents, followed by reconciliations during your childhood, before a significant rupture towards the end, as I understand it, your school years. You described to Ms Ferrari that your relationship with your mother was strained, that you felt she had always preferred your brother and described yourself as having a much closer relationship with your father, despite the difficulties caused by his alcohol abuse and related verbal and perhaps other violence. Your mother wrote a loving testimonial in your support for this plea. It displayed compassion and understanding. Although of course a mother and a child can give different accounts from their own perspectives of their history and relationship, her account does sit somewhat at odds with your account of the relationship between the two of you.
24Your behavioural and learning difficulties resulted in you attending a number of different schools and there is obviously attendant disruption to that. Despite those difficulties, you successfully completed Year 12 of high school and elected not to return for Year 13, the final year. Instead, you moved away from home, into what you described as a hippie commune, where, again using your description, everyone sat around smoking dope. Your engagement with employment during that time was limited and unskilled.
25The following year, a combination of discovering your father had been diagnosed with brain cancer, which it was at that time, thought to have given him a very poor and limited prognosis, and the Christchurch earthquake, saw you return to Christchurch for a period. Eventually, however, you decided to leave for Australia and with the assistance of your family, as I understand funded by your father, you left New Zealand and went to Byron Bay to live. Again, using your descriptor, not mine, you followed a hippie lifestyle. I understand that to mean, you stayed in Byron Bay then moved to other coastal communities, moving generally in circles where smoking dope, and using other drugs and finding casual unskilled work when money was needed was the norm.
26You have lived independently of your family since you left New Zealand at the age of 18, spending most of that time in Australia, but for some time, you travelled in Europe with a then boyfriend. You report that you have had a number of intimate relationships since leaving home. All appear to have been marked by substance abuse and at times, you have been the victim of violence at the hands of intimate partners. Your employment has been sporadic and generally unskilled. Your drug use, constant, and indiscriminate. When I say constant, you do report periods of abstinence, or abstinence at least from harder drugs, but drug use has been, it would appear, a feature of your life since the age of 18. To cannabis, you added MDMA, then amphetamines, at times also cocaine and alcohol. Amphetamine abuse appears to have been the major and continuing problem. After your return from Europe, it would appear you spent your time in capital cities. First Sydney, then Melbourne. And you appear to have descended into a spiral of substance abuse, poor relationship choices, and consequent less attractive employment options for earning money to pay for your drugs and your lifestyle.
27You have had one brief and unsuccessful attempt at drug rehabilitation in 2018, when you were 24 . At that stage, your escalating amphetamine use led to what appears to have been a drug induced psychosis at one stage. You also experienced a cardiac arrest, which was attributable either to your drug use or the consequences of an eating disorder or a combination of the two. Whatever it was and whichever came first, your family intervened. Your mother funded your admission to a drug treatment program in Bali. You went there, left after less than three weeks, relapsed, came back to Australia and decided to try again. You went back to Bali, and lasted for little more than a week on the second occasion, before discharging yourself or being required to leave again. Your drug use has continued unabated since then, and it is after that, that you came into contact with the criminal justice system.
28Ms Carla Ferrari assessed you for the purposes of the plea last month. Based on your self-report, and your presentation at interview, she recorded her diagnostic impressions in the domain of clinical disorders as indicating evidence of Post-Traumatic Stress Disorder (PTSD) and stimulant use disorder. She attributed the diagnostic impression of PTSD to traumas suffered during youth. That is not just the exposure to your father's substance use and its consequences in the home, but also a consequence of the significant traumatic event in your teen years, to which I have alluded. Ms Ferrari attributed the PTSD symptoms also to the domestic abuse that you have suffered in your own adult intimate relationships. Under the domain personality disorders, traits or intellectual impairments, Ms Ferrari noted there was no evidence of entrenched personality disorder. She noted that she had been told of a previously diagnosed, a non-verbal learning disorder and dyslexia. Under the domain medical or neurological problems, she noted the history of eating disorder, currently in remission and related cardiac issues at age 24, with nil current medical problems.
29Those diagnostic impressions based on your self-report and Ms Ferrari’s impressions at interview were unable to be confirmed by psychometric tests. Despite follow up reminders from Ms Ferrari, you failed to complete and return the psychometric tests that she had sent you. They included the DASS, PTSD checklist for DSM-5, the drug use disorder identification Test (DUDIT-E) and the Million Clinical MultiAxial Inventory MCMI-IV. All of them are well recognised assessment tools. Given the attempts that had been made by Ms Ferrari to have you complete those tests, I refused the further application for adjournment of the plea to do so. I considered you had sufficient opportunity if you chose to engage.
30In her testimonial, your mother had described your upbringing as normal and you as a high maintenance child. She said you had struggled to form friendships and had difficulty respecting and accepting rules. She described your father’s behaviour as verbally aggressive and often absent emotionally, due to his alcohol addiction. She drew a link between this exposure to your father’s behaviour and your own addictions and inappropriate choice of partners. She described your partners as being violent, dangerous and unstable. She confirmed your childhood diagnosis of non-verbal learning disability. She reported that since the age of 15, and even after you became an adult, she had facilitated to consultations for you with a number of psychologists. She reported that in your early 20s, you had been diagnosed with borderline personality disorder. She said that diagnosis helped explain your inappropriate, impulsive and unpredictable behaviour. She listed five separate psychologists, two in Christchurch and three in Melbourne to whom you had been referred over the years. The report of borderline personality disorder or diagnosis sits at odds with Ms Ferrari's diagnostic impressions. The inappropriate impulsive and unpredictable behaviours that your mother attributed to the borderline personality disorder diagnosis, Ms Ferrari had also noted, but she attributed them to your PTSD symptoms.
31Ultimately, the label, whether it is borderline personality disorder or PTSD symptoms, may make little difference. Those behaviours both contextualise your poor lifestyle and relationship choices, and lead to the guarded predictions for your rehabilitation. As the Court of Appeal said in Verdins itself, the diagnostic label is the start, not the end of the enquiry.
32Ms Ferrari concluded that at the time of the offending, you were experiencing an exacerbation of your mental health conditions, in response to various psychosocial stressors, including ongoing violence within your relationships, increased substance use to cope, limited treatment of your PTSD symptoms and associated depression and anxiety symptoms.
33Her report was, to some extent, an omnibus. She was referring also, it would appear, to the pending drug charges, although as I have noted, I am told that you are contesting those charges. So it has to be seen in that context. However, I accept that as a result of Ms Ferrari's report, the fifth and sixth limbs of Verdins are enlivened and specifically, I accept Ms Ferrari’s opinion that imprisonment would likely weigh more heavily on you than it would a person without the PTSD and associated depression and anxiety symptoms that she has recorded.
34I accept that talking therapy is much less available to prisoners than it is to those at liberty. However, without diminishing the force of Ms Ferrari's opinion and of that reality, balanced against that must be an assessment of your preparedness to engage in talking therapy or treatment. Your history and current presentation do not paint an optimistic picture of a preparedness to engage in or to sustain an engagement in talking therapy or treatment.
35In Ms Ferrari’s opinion, your risk of reoffending is moderate to high. She considers you continue to experience moderate to severe symptoms of PTSD and associated depression and anxiety. They are the main factors she considers that elevate your current risk profile. She notes that you have not made any further attempts to engage in treatment for your mental health. She considers that you have got a limited support system and that your psychosocial circumstances remain precarious.
36That sits a little bit at odds with what was in the Community Corrections report to which I will refer later, about the limited support system and psychosocial circumstances.
37Ms Ferrari said:
[86] Her compromised mental health increases her risk of relapse into substance use to cope. Additionally, there are inherent difficulties with poor problem-solving, impulsivity and self-regulation in individuals with PTSD which increase risks, however, with treatment, these core symptoms are able to be mitigated and managed.
38I accept Ms Ferrari’s assessment of your risk of reoffending, but I also make the point that there is very little causal connection between those symptoms and the offending, that is, between the manifestations of those symptoms, as she describes them, and the characterisation of the offending here.
39Ms Ferrari notes as protective factors, her opinion that you do not display evidence of a criminal belief system or antisocial traits, and the absence of an entrenched personality disorder, mania or psychotic symptoms (which if present, would further increase the risk of recidivism). Balanced against what Ms Ferrari said was the absence of evidence of a criminal belief system, is your forensic and psychosocial history as I have set it out. Although as I continue to say, I am giving you the full benefit of the presumption of innocence, in respect of the pending drug trafficking related charges.
40On the history that you provided Ms Ferrari, in respect of the pending charges, you were living with a partner, who was supplying you with drugs, and who you knew was trafficking. According to your mother, as I have noted, you have been diagnosed with borderline personality disorder, and according to your own report, based on what you told Ms Ferrari and as I heard it through your counsel, and according to your mother’s testimonial, your life appears to have revolved around substance abuse, and your relationships with substance abusing men who engage in violent and antisocial behaviour since your teens. This sits somewhat at odds with Ms Ferrari's opinion there was no evidence of a criminal belief system or antisocial traits, or of an entrenched personality disorder.
41Ms Ferrari also lists as protective factors, what she describes as insight into your mental health and related substance abuse, and your expressed desire to return to your previous level of functioning, before you became involved with the criminal justice system. However, on the history before me, although you did not become involved in the criminal justice system until age 26, your drug use was well entrenched by then, as was your disengagement from or disinclination to participate in psychological treatment and drug rehabilitation. The evidence before me indicates a long term pattern of reluctant initial engagement with psychologists, followed by rapid withdrawal and the attempt at drug rehabilitation seems to follow the same pattern.
42I have already noted that you were eventually placed on a community correction order for the dishonesty offending, which led to the attempt to pervert the course of justice charge. That order had conditions that you engage in mental health and drug rehabilitation treatment. It is clear from the account that you gave Ms Ferrari of your circumstances at the time that you were charged with the trafficking offences, and that is whilst you were subject to the community correction order, that you were still abusing substances, living with a partner who was trafficking, being supplied by him and in what can fairly be described as a drug milieu, and that you were not engaging in drug rehabilitation or mental health treatment.
43Although I had not formed a concluded view I directed that you be assessed for suitability for a community correction order, making it clear that I was considering whether that alone, or in combination with a term of imprisonment might ultimately be the appropriate sentence.. The report from Corrections into your progress on your existing order indicates that you have successfully completed a Choice Program pertaining to your drug treatment condition, but have not yet engaged with a psychologist, as required under the mental health treatment condition of the order. The accompanying report from the MHARS, the mental health advice and response service, indicated that one of the significant road blocks to you engaging in mental health treatment, was your inability to fund treatment. You are ineligible for Medicare funding for psychological treatment because you are a New Zealand citizen.. So whilst there has been a history of reluctance to engage, I take into account that there could be significant financial barriers to engagement at present as well.
44The Corrections report also noted that under the existing CCO, that you were difficult to get in contact with and that you had incurred two unacceptable absences, although your engagement had improved in recent times. So far as your self-report for the purposes of the assessment of suitability for a CCO to be imposed by me, you reported to the assessor that you had started using ice at 24, that you had not used for a month, and had only occasionally used since May of this year. You expressed a commitment to engaging in drug rehabilitation. That sits at odds with what you told Ms Ferrari, which was not only at the time of being charged with the trafficking, but up until now, you were using ice daily, 0.5 grams daily, and that you described yourself as needing ice to function.
45Ms Ferrari expressed the opinion that you lack the internal resources to establish and maintain the necessary changes. The difference between what you told Corrections and what you told Ms Ferrari, along with Ms Ferrari's assessment of your lack of motivation, unless supported or compelled to engage in counselling for your mental health and substance abuse, most likely explains the difference in the Corrections assessment of your risk of reoffending as medium, compared to Ms Ferrari’s assessment of medium to high. I note also, at odds with Ms Ferrari’s assertion that you took full responsibility for your conduct in presenting the false reference to the court,you told the Corrections assessor you had been 'set up' and did not write the letter. That is hardly taking responsibility, or expressing remorse. As I have said, whether you wrote the letter or not, you are the one that put it to the court and it does not absolve you of any responsibility, legal or moral, if someone else wrote it.
46I do not consider that you demonstrate at the moment, motivation or capacity to address your substance abuse or mental health issues.
47Noting your lack of motivation, Ms Ferrari recommended mandated mental health and substance abuse treatment, as well as transitional support and encouragement to engage in employment, as necessary to reduce your risk of relapse and recidivism, and your association with antisocial individuals. Of course, a court cannot mandate mental health or substance abuse treatment. The most that can be done is to make opportunities available to a person, for them to participate in, if they choose to. But Ms Hill, the choice is yours. Obviously, developing a prosocial circle of friends, and engaging in meaningful employment would be of benefit, but again, it is up to you. I see no evidence that you have done anything to demonstrate a desire, or a commitment, let alone a sustained capacity, to change your ways.
48Having regard to all these matters, it is clear that Ms Ljubicic's frank assessment of your prospects for rehabilitation as at best guarded is well supported by the evidence before me.
49I am not persuaded therefore that your prospects for rehabilitation or attempts to date are such, as to significantly temper the weight to be given to deterrence, both general and specific, to denunciation and just punishment. Specifically I am not satisfied by reason of powerful evidence of rehabilitation, that a sentence not involving a component of imprisonment is open. I do, however, consider that a sentence structured to give you every encouragement, but also structured support, to engage in rehabilitation both for your mental health and for your substance abuse is critical, if you are to be encouraged and helped to find the strength with the supports available to you, to turn your life around. You are clearly intelligent. You are clearly capable and you are clearly frightened by the position you now find yourself in. I hope this will be a salutary lesson for you and a realisation that you have got a much better life ahead of you, if you make better choices and accept the help that is available to you.
50I accept that imprisonment is much more burdensome at present because of Covid 19. It is likely to weigh more heavily on you, because of your symptoms of PTSD, depression and anxiety. I accept that supervised opportunities to participate in metal health and drug rehabilitation treatment are the best way to assist you, to enhance your prospects of addressing your mental health and substance abuse, which are the underlying causes of your offending and therefore to reduce your prospects of reoffending. All of this in my view, combines to indicate that the appropriate sentence is a term of imprisonment, followed by a therapeutically directed community corrections order.
51The overall sentence, not just the term of imprisonment that I propose to impose, but the overall sentence, including the length of the community corrections order is considerably lower than what I would have considered imposing in a Covid free world, for a person without your PTSD symptoms and having regard to the fact that were I to impose a sentence of imprisonment of 12 months or more, that would add to the burden of imprisonment because of the prospect, a real prospect of deportation. A sentence of 12 months imprisonment or more would lead to cancellation of your visa and you would have to seek to persuade the Minister that you should not be deported, back to a place you have not lived in for any of your adult life. So I have taken all those factors into account.
52By imposing a combination sentence, you will have the benefit of a certain release date, instead of the uncertainty of whether, and when you will be released on parole. Having set a certain release date, of course although I cannot take it into account, I say to you just by way of explanation, that the term of imprisonment that I impose, is one that is likely to have days taken off it by reason of the restrictions imposed as a result of Covid, that is management days. I have not adjusted the sentence though to take that into account, because I am not allowed to and it would be inappropriate for me to do so. The sentence I impose must , reflect the gravity of offending. But, the significant external factors I have identified, and the personal factors relevant to you, justify a more compassionate and lenient sentence that might otherwise be thought appropriate.
53I want to point out though that a post sentence community corrections order, whilst providing you with structured support, does not offer the same flexibility that supervision on parole does. So, if you relapse when in the community the consequences are being dealt with for breach of community correction order, as opposed to the flexibility of parole. I say that only to impress on you the importance for you of addressing your underlying problems and therefore, giving yourself every prospect of living a more meaningful and offence free life; of
using your time in custody to dry out, to engage in drug rehabilitation and such psychological assistance as available; to reflect on your life and your choices and therefore, to be well equipped to avail yourself of the rehabilitation opportunities that will be offered to you under the community correction order on release. Because I am imposing a combination sentence, I am not imposing any unpaid community work as part of the community corrections order. The conditions of the community correction order are like the one that you are already on, rehabilitative and designed to assist you to stay free of drugs to address your mental health issues and to live a more meaningful life.
54Could you now please stand.
55Alexandra Hill, on the charge of attempt to pervert the course of justice and the related summary offence of committing an indictable offence on bail, you are convicted. On the charge of attempt to pervert the course of justice, you are sentenced to be imprisoned for a period of six months, followed by a therapeutic community correction order for a period of 18 months. I will set out the conditions of that in a moment.
56On the charge of committing an indictable offence whilst on bail, you are sentenced to be imprisoned for a period of one month. That sentence is obviously to run concurrently with the six month sentence on the attempt to pervert the course of justice. On the community correction order, the conditions are these. The order will last for 18 months, commencing upon the completion of your term of imprisonment. You must attend at the Box Hill Community Correctional Services at 703 Station Street, Box Hill, within two clear days after the commencement of the order, that is within two clear days after your release from imprisonment.
57There are mandatory terms that apply to all community correction orders, they are these. You must not commit another offence for which you could be imprisoned, during the time the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. That means, you must not be substance impaired when you attend for any appointments with or supervision with Corrections and you must submit to drug or alcohol testing if directed to do so. You must report to and receive visits from the Secretary or delegate. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from, and directions of the Secretary or delegate.
58In addition to the mandatory terms, there are the following special conditions, you must be under the supervision of a community corrections order officer for the 18 month period of the order. You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager and you must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or a residential facility, as directed by the regional manager. Do you understand the effect and conditions of the community corrections order Ms Hill?
59OFFENDER: Yes.
60HER HONOUR: And do you consent to it being made? Do you agree to being placed on that order? Ms Ljubicic, do you want to go down and explain?
61MS LJUBICIC: Yes, Your Honour.
62HER HONOUR: What I might do is have that handed to you. If you could take - you can take a seat Ms Hill. Ms Ljubicic will come down and speak to you and explain that to you. Yes and if you are satisfied she understands and consents, thank you, have her sign it.
63MS LJUBICIC: Thank you, Your Honour.
64HER HONOUR: All right, Ms Hill I see that you have signed that acknowledging that you understand the effect and conditions of the order and consent to it being made. Can you just confirm that is right? Can you confirm that that is correct?
65OFFENDER: It is.
66HER HONOUR: Thank you. All right, a copy of that will be made and I think in the circumstances, provided to you Ms Ljubicic rather than to Ms Hill. I declare pursuant to s6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to a term of imprisonment of three years, with a non-parole period of 18 months. However, because you have pleaded guilty and for the reasons I have identified, your actual sentence is what I have just pronounced, that is six months imprisonment, followed by an 18 month community corrections order. And you will no doubt explain that too Ms Ljubicic. Thank you. Any further orders that are required to be made?
67MR McCARTHY: No, Your Honour.
68MS LJUBICIC: No, Your Honour.
69HER HONOUR: And the form in which the sentence has been pronounced correct?
70MS LJUBICIC: Sorry Your Honour?
71HER HONOUR: The form in which the sentence has been pronounced correct?
72MS LJUBICIC: Understood.
73MR McCARTHY: Yes, Your Honour.
74HER HONOUR: All right, thank you. Are you able to go down to see Ms Hill downstairs?
75MS LJUBICIC: Yes.
76HER HONOUR: In that case, I will direct that Ms Hill now be removed and I will adjourn. Will you remove Ms Hill please. Thank you both for your assistance, we will adjourn.
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