Director of Public Prosecutions v Holding (a pseudonym)
[2019] VCC 2214
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISAAC HOLDING (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF SENTENCE: | 19 December 2019 |
| CASE MAY BE CITED AS: | DPP v Holding (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2214 |
REASONS FOR SENTENCE
---Subject: Criminal Law - Sentence
Catchwords: Plea Guilty – criminal damage – attempt to intentionally damage property – persistently contravene family violence intervention order – attempt to pervert the course of justice – unlawful assault – driving whilst disqualified – careless driving – driving vehicle making unnecessary noise or smoke.
Legislation Cited: Crimes Act 1958 (Vic) s.197, s.321M, Family Violence Protection Act 2008 (Vic) s.125A, Summary Offences Act 1966 (Vic) s.23, Road Safety Act 1986 (Vic) s.30, s.65, Road Safety Rules 2017 (Vic) r.291.
Cases Cited:Buscema v R [2011] VSCA 206, Ibbs v R (1987) 163 CLR 447, Hassan v R [2010] VSCA 352, Bugmy v R [2013] HCA 37, Terrick v R [2009] VSCA 220
Sentence:Total effective sentence 1 year imprisonment – fine – licences suspended for 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Sprague (For Plea) | Solicitor for Office of Public Prosections |
| Ms J. Parker (For Sentence) | ||
| For the Accused | Mr D. Anderson | Balmer & Associates |
HIS HONOUR:
1Mr Holding[1] came before the Court on the 11 December 19 to plead to a four-count indictment. Mr Holding was born on the 16 October 1980 and at the plea was represented by Mr Anderson, who appears on his behalf today. The DPP was represented by Mr Sprague and Ms Parker appears today.
[1] A pseudonym
2Shortly prior to the time of these events, Mr Holding had been living with his partner, de facto, and there had been an issue and he had moved out on the 12 March 2019. At the time his partner was pregnant. They had had a relationship to that time of two years.
3The plea involved, as I have said, four charges. The first involved a damaged fence under s.197(1), to a window of the house of a friend of his partner where she was living, this was dated 14 March 2019, Ms Barge[2]. The maximum penalty for such offence being as prescribed by Parliament one of 10 years for criminal damage. The second count is an attempt charge of criminal damage. This involved him kicking the car door of the same person. It is a combination offence under s.321 and 197(1). The maximum penalty prescribed for such offence is one of five years.
[2] A pseudonym
4Mr Holding was subsequently arrested as a result of those crimes and bailed. The charges thereafter relate to activities undertaken firstly in regard to Count 3 from 18 March 2019 to 24 March 2019, a charge of persistent contravention of a family violence order, for which the maximum penalty prescribed is one of five years. The family violence intervention order had been served upon Mr Holding on 15 March 2019, when he was bailed. His partner, who is aged 39, is Rebecca Magoffin[3]. The particular breaches are detailed in the indictment, but essentially involve utilising a friend of his, indeed, an ex-partner, Ms Shaw[4], to either speak or text the protected person. As I said, the specifics of these breaches are set out in the indictment.
[3] A pseudonym
[4] A pseudonym
5The fourth charge involves, during the period 18 March 2019 to 26 March 2019, an attempt to pervert the course of justice again by using his ex-girlfriend Ms Shaw to try to arrange statements and withdrawal of statements from the victim and essentially alibis from the victim's brother and indeed from Ms Shaw. The pre-sentence detention to date is ‑ ‑ ‑
6MS PARKER: Two hundred and eighty days, Your Honour.
7HIS HONOUR: Two eighty days.
8MS PARKER: I think that is agreed by my friend.
9MR ANDERSON: Yes.
10MS PARKER: That is excluding today, Your Honour.
11HIS HONOUR: Yes, certainly, and I have also been asked to take into account a series of summary matters pursuant to s.145 of the Criminal Procedure Act. The first involves an unlawful assault upon the victim set out in the indictment, Ms Magoffin. That assault took place by way of a wrestle at their premises and took place on the 13 March 2019. That is an offence under s.23 of the Summary Offences Act, for which the maximum penalty is one of three month gaol and/or 25 penalty units.
12Insofar as the second offence, that is an offence of drive whilst disqualified, an offence against s.31 of the Road Traffic Act, for which the maximum penalty prescribed is one of two years' gaol, or 240 penalty units and/or both. The third offence is one of careless driving in Stud Road, Dandenong, also on 14 March 2019, an offence against s.65(1) of the Road Traffic Act. Charge 6 of the summary matters is a noise offence under Rule 291 of the Road Safety Rules, of which the maximum penalty prescribed is one of two penalty units. The careless driving maximum penalty is 12 penalty units, I might not have pronounced. Charge 10 is a further charge of driving while disqualified and is the circumstances where he drove up the drive of the victim's friend.
13Mr Holding has extensive priors going back some years, not dramatic but certainly a number of priors for driving while disqualified. Those priors go back to 2001, when he was aged 20. The only time he has been sentenced to gaol, as I perceive, is in 2001 for a burglary count, in which he got one month's gaol. In regard to one of the offences, he has, on three prior occasions, breached intervention orders, for which, in 2009, he was given a community order, in 2016, a community correction order and in 2017, a fine of $500.
14The circumstances of the offending were accepted as indicating clearly that the most serious offence in this matter is the Charge 4, attempt to pervert the course of justice. The learned prosecutor in the trial submitted that, given the seriousness of such, a combination offence was out of range as appropriate sentencing. In his plea, Mr Anderson had submitted to the Court that, taking into account all the circumstances, in particular, the matters set out by, as he then was, Nettle JA in the case of Buscema [2011] VSCA 206, in particular, at paragraph 6, that I should assess the heinousness of this criminality in the sense of the High Court talks about a range of heinousness of crimes set out in the case of Ibbs (1987) 163 CLR 447, 452, at a low level. It was the view of the prosecution that I should not accept that submission, and that I should assess the criminality in this matter at mid-level.
15The prosecution also put to me that, given the circumstances and the grave difference in culpability between the charges, substantial concurrency would be required and that for a number of the charges, of course, gaol was not open at all, and have confirmed today that the presentence detention period is now 280 days.
16It comes therefore firstly to assess the objective criminality of Charge 4 on the indictment. As I say, I do so on the basis of the proposition set out by the then Nettle JA. One of the matters that Mr Anderson put, and we discussed, was the consequences to be avoided. It is clear that that is a matter to be considered. By coincidence, there was reported yesterday, and it may well have come out today, a similar case where a person was sentenced to gaol. The circumstances were to protect a miscreant from prosecution and in that matter, steps had been taken to destroy a motorcar and the identity of the person was in that regard.
17The consequences in this case, as have been pointed out, are nothing to do with the breaches of the family intervention order, but what might be seen as a relatively minor assault and damage charge and that has to be accepted. The time involved is somewhat limited. The persons involved are his ex-girlfriend, who was essentially being used as a conduit, both in regard to the charges set out in Charge 3 on the indictment and in particular, in this charge and asked her to speak to the others. Madam Prosecutor, as I understand the position, I might be wrong about this ‑ ‑ ‑
18MS PARKER: Yes Your Honour.
19HIS HONOUR: ‑ ‑ ‑ there is no evidence of her being recorded as actually speaking or asking those persons to actually perform those tasks, is there?
20MS PARKER: That's correct, Your Honour.
21HIS HONOUR: Yes. So, what, the attempt to pervert the course of justice in this case is clearly the steps taken by Mr Holding to have his ex-girlfriend carry out his wishes, albeit that there's no evidence that it was actually done?
22MS PARKER: That's correct, Your Honour.
23HIS HONOUR: Yes. The final matter to be taken into account is that there was, in fact, as a result of this activity, no deception effected upon the court, or any corruption of official records, I do note, and I do not take this as anything prejudicial, that his partner, in fact, has sought to withdraw her complaint. That of course, has not been successful.
24Analysing those circumstances, it seems to me that I should accept the proposition put by Mr Anderson. On the scale of heinousness, as I have described it in Ibbs, I do assess this as a low level attempt to pervert the course of justice matter. I would reject the submission put to me by the prosecution that I should assess it at mid-range.
25The plea on behalf of Mr Holding was conducted by Mr Anderson and Mr Anderson first tendered Exhibit 1, which was the written submission. Insofar as that was concerned, he also spoke to that submission and indicated from the start that there was no suggestion that the Court has any option but to impose a term of imprisonment.
26As I say, he spoke to that written submission. The first matter he also relied upon was the report of Ms Lechner. That report was tendered as Exhibit 2 and I want to read from passages of that report. Firstly, on p.5 of that report, the following was said as to offending behaviour:
'Mr. Holding acknowledges his role in the above offending. He stated, “about two months after it happened, I began to understand that I can come across as scary”. He further stated “I didn’t understand the pervert the course of justice charge but now I do … I’ve spoken to the psych here to understand what it meant and how serious it is … if I’d known what it meant, wouldn’t have done it … my partner was sending messages and I was trying to work things out with her … she’d been told by the police that I wanted nothing to do with her, I’ve got letters from her saying she regrets it and I regret it too”.’
27It seems to me there's a lot of truth in those statements and I accept such. Going to p.6 in the assessment of the clinical psychologist, she thought that Mr Holding is in a category that poses the same level of risk as the average violent offender and would require a moderate level of supervision and resources to address this risk of what she described as spousal violence.
28The assessments enabled the identification of critical items that are of particular relevance to his risk, those being substance abuse and environmental stress, such as loss of relationship, perceived rejection or abandonment. This of course is not helped by his stimulant use disorder, with a history of
29polysubstance abuse.
30On p.7, Ms Lechner helpfully said this:
'Mr. Holding has an extensive prior history but has not been in prison for the past 14 years. He presents with a long-standing poly-substance abuse problem that has arisen in the setting of a history Complex Developmental Trauma that has undermined his social, vocational and emotional development. He currently presents with symptoms of Adjustment Disorder with Depression and Stimulant Use Disorder (DSM 5) – the latter in early remission … He is regretful for his actions although it took him some considerable time to understand the impact that his behaviour can have on others and how intimidating his actions can be … Mr. Holding therefore has deep-seated and long-standing feelings of abandonment …
Mr. Holding impressed as a person who finds it hard to engage in reflective and consequential thinking … He is currently reporting a range of symptoms of depression at a clinical level . . . Mr. Holding admits to his offending behaviour, expressing shame and regret for his actions. He stated that he did not realise the seriousness of his actions in respect of the pervert the course of justice. He acknowledges the need to engage with anger management counselling; he is particularly vulnerable to angry acting-out when he is faced with potential loss, this stemming from his insecurity about intimate relationships.’
31There is much of that report that rings true, in my opinion.
32MS PARKER: Your Honour, I'm hesitant to interrupt.
33HIS HONOUR: Don't be hesitant.
34MS PARKER: Thank you. I just wanted to draw Your Honour's attention to paragraph 37 of the opening, which does ‑ ‑ ‑
35HIS HONOUR: Yes, which says what?
36MS PARKER: ‑ ‑ ‑ state the victim Magoffin did actually make a statement of no complaint to police, so ‑ ‑ ‑
37HIS HONOUR: I know. That's what I said.
38MS PARKER: Yes. I apologise if I misled Your Honour previously.
39HIS HONOUR: No, no. But there's no - Madam Prosecutor, there's no suggestion that that relates to this action. What's happened, as I understand the position, is that subsequent she did this ‑ ‑ ‑
40MS PARKER: That's right, it's some months ‑ ‑ ‑
41HIS HONOUR: But we're now led to believe that they have had a rapprochement ‑ ‑ ‑
42MS PARKER: That's right.
43HIS HONOUR: ‑ ‑ ‑ in the sense that the baby's been born, the IVO has been altered so that he can in fact visit her. So there's been a change of view.
44MS PARKER: Dynamic, yes.
45HIS HONOUR: Yes.
46MS PARKER: Yes, certainly, Your Honour.
47HIS HONOUR: Dynamic is the word, a very modern word.
48Coming back to the submissions, in particular set out at paragraph 13 of the written submissions I said of Mr Anderson's, in fact they were Mr Rattray's but were adopted by Mr Anderson, matters in mitigation were put as first the plea of guilty at the earliest opportunity, which I accept totally; the utilitarian benefit associated with that plea; the impoverished and traumatic formative personal history, which has been detailed by Ms Lechner as I have indicated and also set out in the details of personal circumstances at paragraph 11 and 12; the remorse and insight; the relevant underlying mental and cognitive health problems; and the guarded prospects of rehabilitation.
49Clearly the background circumstances as were put to me by Mr Anderson and difficulties with dealing with his partner's son, the difficulties dealing with separation after two months, are matters, Mr Holding, that you have got to get a hold of. You simply cannot react like this. Mr Anderson spoke about the difficulties that Mr Holding has had in custody, problems with his back pain, and he described the circumstances of his remand as essentially miserable.
50I have already made an assessment of the criminality. Mr Anderson essentially put it as unsophisticated in the sense that it indicates a lack of understanding that you make these sort of calls in circumstances where they are going to be recorded. Two sentences in this court were also tendered to me, as were the statistics, which I take into account given their impact and the limitations on that as set out by the Court of Appeal in the matter of Hassan [2010] VSCA 352.
51Insofar as the circumstances, Mr Anderson submitted it should really have been seen as actions of emotional manipulation. There was no result of any perjury taking place. The damage to the vehicle was minor. It was submitted that the criminal damage was at a low level and that generally, as I have already described, the major charge was at a low level as well. I was advised, as I have just said, that there has been a reconciliation. There has been a variation to the intervention order which permits contact by way of phone and letters, in particular to the child now born.
52It was conceded that gaol was appropriate, that the alternatives were either a head sentence with parole and/or a period of gaol with a CCO. In that regard on the basis I have already indicated, a report was obtained and that has been positive. The matters of Bugmy [2013] HCA 37 and Terrick [2009] VSCA 220 were referred to and I accept such apply in this case. It was submitted that, despite the long list of priors, albeit at their level, given the relationship, given the child, that his client has advised him that he wants to make something of this relationship and is going to work hard at it. It was submitted that there has been appropriate remorse and that I should in the circumstances acced to the combined determination.
53From the Community Corrections Order report I considered, it is clear that Mr Holding does need assistance. He needs assistance in ensuring that he gets of the drugs, in ensuring that when he does have a crisis, in this case separation and problems with his partner's son, that he can deal with them and does not deal with them in a criminal manner. However, in the circumstances I have decided not to impose a combined sentence, given the objective criminality of the crimes. I have taken the view that a straight sentence is the easiest way to deal with the matter and the most appropriate way.
54Mr Holding, if you would stand up, please.
55In regard to the indictment on the first charge of criminal damage you will be sentenced to a period of imprisonment of two months; in regard to the attempt criminal damage, a period of imprisonment of one month; in regard to Charge 3, the breaches of the IVO, persistent breaches, a period of imprisonment of six months; and in regard to the attempt to pervert the course of justice a period of imprisonment of nine months.
56Using nine months as the base sentence, I add one month from the period of sentence imposed in Charge 3 to be served cumulatively upon that sentence, making a total aggregate sentence under the indictment of 10 months.
57In regard to the summary matters the first charge, one of assault, I sentence you to a period of imprisonment of one week; on the drive while disqualified, a period of imprisonment of three months; on the careless driving, two penalty units; on the noise charge, one penalty unit; the second drive while disqualified, which in fact is a fifth or might even be an eight, I am not too certain whether you have got give or you have got three priors, but I also sentence you to a period of three months.
58I order that one month of each of those disqualification sentences be served cumulatively upon each other and upon the sentence imposed on the indictment, making a total aggregate sentence of 12 months.
59I order pursuant to s.18 that 280 days that you have served be deemed as service of this sentence. Two-eighty days, about seven months, isn't it, approximately? Somewhere along ‑ ‑ ‑
60MR ANDERSON: Maybe just a fraction over. That leaves 85 days to go.
61HIS HONOUR: Yes.
62MR ANDERSON: Yes.
63HIS HONOUR: That will be declared as service of this sentence and a record of that will be recorded. The application for a s.464 order has been withdrawn. Madam Prosecutor, what's the issue with the licence? I think we discussed this matter last time. I think Mr Anderson and I got to the stage that essentially it's a matter for me.
64MS PARKER: It is, Your Honour. It's discretionary, as I understand, pursuant to either the Sentencing Act provision s.89A or ‑ ‑ ‑
65HIS HONOUR: Well, it seems to me he should be off the road as a result of driving while disqualified and I will make that a period of 12 months.
66MS PARKER: Certainly, Your Honour.
67HIS HONOUR: Which particular section do I do that under?
68MS PARKER: So you ‑ ‑ ‑
69HIS HONOUR: While you're looking at that, as to 6AAA, Mr Holding, what the end result is that you have got to do 12 months' less what you have served, all right? Parliament asked me to make sure you understand that by pleading guilty you get the benefit. Essentially I gave you under the indictment - or essentially I have given you a - not essentially, I have given you a total aggregate period of imprisonment of 12 months. Can I indicate to you that had you not pleaded guilty the sentence I would have given you was 16 months.
70So the benefit for you by pleading guilty is that you do not have to serve another six months, all right? But you do have to serve another - what did you say, Mr Anderson?
71MR ANDERSON: Eight-five days.
72HIS HONOUR: About 85 days. Anyway, Mr Anderson will talk to you about that. It would have been nice to get you out for Christmas, but that is just not possible in the circumstances.
73Madam Prosecutor, which section is it under?
74MS PARKER: Your Honour, my instructions are that it's under s.28(1)(b) of the Road Safety Act, but I'm not entirely sure that's correct.
75HIS HONOUR: Well, why don't I say ‑ ‑ ‑
76MS PARKER: Simply because that's the ‑ ‑ ‑
77HIS HONOUR: Why don't I say pursuant to the Road Safety Act I suspend his licence for 12 months.
78MR ANDERSON: Yes.
79MS PARKER: Yes, Your Honour.
80HIS HONOUR: Sorry, his licence is cancelled and suspended.
81MS PARKER: Yes. Otherwise it may just be easier under s.89A of the Sentencing Act. That's the discretionary provision.
82HIS HONOUR: But what does that relate to? Doesn't that relate to driving offences of particular form?
83MS PARKER: No, it's in relation to any offence, so it has a wide discretion.
84HIS HONOUR: All right. If that's it, what is it, 89 ‑ ‑ ‑
85MS PARKER: But, Your Honour, if I could just have one moment ‑ ‑ ‑
86HIS HONOUR: Yes, go on.
87MS PARKER: ‑ ‑ ‑ I just don't want to give you the wrong information.
88HIS HONOUR: No, not a problem.
89MS PARKER: It's simply because s.28A of the Road Safety Act sets out the effect of an order being made, but I don't know whether it's the source provision.
90HIS HONOUR: Well, under the Road Safety Act - I will just say under the Road Safety Act his licence is cancelled and he is not entitled to seek another licence for a period of 12 months.
91MS PARKER: Certainly, Your Honour, and I'll ‑ ‑ ‑
92HIS HONOUR: Mr Anderson, any other matters that I need to clarify?
93MR ANDERSON: No. But can I just say in relation to the licence loss Your Honour does have a power under s.28 to cancel or suspend the licence for a period of time as you see fit if an offence has been committed under the Road Safety Act, which is here. And so the cleanest way to do it is to attach it to those two ‑ ‑ ‑
94HIS HONOUR: Twenty-eight.
95MR ANDERSON: Is to s.28 of the Road Safety Act.
96HIS HONOUR: Pursuant to 28, Madam Associate.
97MR ANDERSON: And Your Honour has the power to suspend or cancel, so the effect of a cancellation can just sometimes create more hurdles.
98HIS HONOUR: All right. What I'll do is suspend his licence for a period of 12 months.
99MR ANDERSON: Thank you, Your Honour.
100HIS HONOUR: Mr Holding, what that means is you do not have to go through the whole process of getting a licence again, but you have got five disqualifications, drive while disqualified. Next time you come up you are going to get a big whack for that, all right?
101OFFENDER: Yes, Your Honour.
102HIS HONOUR: Mr Anderson, you've talked to Mr Holding about the importance of the recommendations in the report about him getting some treatment for his drug issue, most particularly for his emotional reaction to circumstances.
103MR ANDERSON: Yes, Your Honour.
104HIS HONOUR: This is like - what is it called, the Men's Change Program I think would be appropriate, very appropriate for him.
105MR ANDERSON: Yes. It's good life advice.
106HIS HONOUR: He'll need some strong recommendation on that.
107MR ANDERSON: I will.
108HIS HONOUR: Any other matters?
109MR ANDERSON: No, Your Honour.
110HIS HONOUR: I'll sign the order. Is it ready now? I don't have to do that, you just give that advice. Would you give that to Mr Holding now.
111MR ANDERSON: Do you want me to approach, Your Honour, as well as your associate?
112HIS HONOUR: Just the driver's licence advice, that's all. Yes, I thank both counsel for their assistance.
113MS PARKER: Thank you, Your Honour. Yes, Mr Tipstaff. Officers, just wait one minute until he gets this notice on his licence.
114CORRECTIONS OFFICER: Yes, sir. Thank you.
115HIS HONOUR: Thank you.
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