Director of Public Prosecutions v Honan

[2021] VCC 409

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01555

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON HONAN

---

JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March & 9 April 2021
DATE OF SENTENCE:	9 April 2021
CASE MAY BE CITED AS:	DPP v Honan
MEDIUM NEUTRAL CITATION:	[2021] VCC 409

REASONS FOR SENTENCE

---

Subject:Plea - sentencing

Catchwords:          Attempt to pervert the course of justice

Legislation Cited:  Sentencing Act 1991

Cases Cited:

Sentence:24 months Community Correction Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Gurry	Office of Public Prosecutions
For the Accused	Ms S. Gillahan	Emma Turnbull Lawyers

HIS HONOUR:

1Jason Honan, you have pleaded guilty to one charge of attempting to pervert the course of justice.  This offence carries a maximum penalty of 25 years' imprisonment.

2You are now aged 36, having been born on 30 October 1984.  At the time of the offending in late 2019 you were aged 34 to 35.

3You do have a criminal record, about which I will go into more detail shortly.

4At the time of the offending you were employed as a casual labourer. 

5The detailed circumstances of your offending are set out in the prosecution opening tendered as Exhibit A. 

6The background to the offending is as follows.

7On 24 November 2018, you were found in possession of a stolen vehicle, methamphetamine, house-breaking implements and other items suspected of being related to crime.  You were subsequently charged and bailed.

8For unrelated offending, on 15 August 2019 you were convicted of possessing ecstasy, trafficking butanediol, committing an indictable offence whilst on bail and negligently dealing with the proceeds of crime.  You were sentenced to serve a community correction order for 12 months with conditions directed towards your rehabilitation, in particular your long-term drug habit.

9On 10 October 2019, the 24 November 2018 matters were listed for a summary case conference at Ringwood Magistrates' Court.  You were facing charges of theft of a motor vehicle, possess methamphetamine and other alleged offending.  You indicated an intent to plead not guilty.

10Between 10 October 2019 and 11 December 2019 you attempted to pervert the course of justice by providing to Victoria Police prosecutors documents containing false information or representations relating to your employment status and the circumstances relating to the alleged stolen vehicle and other items found in your possession on 24 November 2018.  Your clear intention was that the criminal proceedings against you would be withdrawn.

11The false information comprised a letter, receipts and pay slip produced at different times and which are detailed in the prosecution summary and particularised in the present indictment to which you have now pleaded guilty.

12Once police investigation had revealed the false documentation the matter settled, and on 24 February 2020 you were convicted of theft of a motor vehicle, possess house-breaking implements, fraudulently use a number plate, possess methamphetamine and deal property suspected of being proceeds of crime, and you were fined $2,000.

13On 13 July 2020 you were arrested concerning the false information you provided concerning the November 2018 charges.  You were interviewed and you attempted some explanation in denial of the offending.  You were charged that day and released on bail.

14On 7 October 2020, the first committal mention was adjourned as the parties were in discussion relating to the charges. 

15On 17 November 2020, the matter resolved to a straight hand-up brief on the present charge.

16I now turn to your personal circumstances. 

17As I noted earlier, you were 34 to 35 years old at the time of the offending and you are currently aged 36. 

18Your prior criminal history comprises five appearances in total at various Magistrates' Courts over a period of five years, commencing in October 2014 when, just before your 30th birthday, you appeared in the Ringwood Magistrates' Court and received a fine of $1,800, without conviction, for burglary, theft, unlicensed driving and possessing amphetamine.

19In March 2017 you were fined $600, with conviction, again for unlicensed driving and for failing to answer bail.  Less than three months later, you were given a 12-month good behaviour bond for methamphetamine possession and use and further driving offending.

20Just over four months after that you were convicted and fined again, this time for handling stolen goods as well as, again, driving offences.

21On 15 August 2019 you were placed on a 12-month community correction order for possessing ecstasy and negligently dealing with the proceeds of crime.  I note that your current offending before me today breaches this order.  You commenced the present offending within two months of the commencement of that correction order.

22I note also for context to your present circumstances, that for unrelated offending you were placed on a second community correction order commencing on 9 January 2020 for dishonesty offences committed in August 2018 and July 2019.  You were subsequently arrested and charged on 26 May 2020 with further alleged matters committed on that day including possess methylamphetamine and road traffic offences.  This matter has not been finalised and is presently listed for hearing on 14 July 2021.  The alleged matters occurred during the operational period of each community correction order and any ultimate conviction will breach both orders.

23These matters do not fall into the category of prior offending but are reflective of your continuing difficulty in managing your drug addiction and are relevant to consideration of your prospects of rehabilitation.

24Breach proceedings have already commenced in relation to the correction order of 15 August 2019.  The contravention report concerning that order acknowledges your positive commencement and partial compliance with the order.  It also acknowledges your insight that your drug use is a common risk factor to your offending behaviour and your partial participation in drug abuse, mental health and offending behaviour programs.  It is noted that you have continued to engage in the Monash Mental Health Program despite being placed in breach proceedings.

25Reports tendered from Katerina Nemcova, clinical psychologist, and Adrian Pelusi, alcohol and drug counsellor, support your willingness to engage in rehabilitation.  After some inconsistency in attendance, it was noted that you re-engaged in alcohol and drug counselling consistently on a fortnightly basis.

26Your plea before this court was heard on Friday 12 March last and was adjourned to today to allow you to enter a previously scheduled residential detoxification program conducted by the Windana organisation.  You were admitted to the program on the following Monday 15 March 2021 for methamphetamine withdrawal, and were discharged after 10 days as planned on completion of the program on 24 March 2021.

27The reports now tendered confirm that during the program you demonstrated a conviction to change your life and it was considered that if you avail yourself of the follow-up supports offered, your chances of recovery are positive.  It was acknowledged that rehabilitation from substance dependency is a lengthy and difficult ongoing process.  You are currently awaiting a bed date with follow-up services at Maryknoll for long-term rehabilitation.

28You are the only child of your mother and father and have four half-siblings.  Only one, a sister, lives in Victoria and the rest live overseas. 

29Your parents separated when you were 12, your mother returning to the United States after the separation.  You have seen her on only a handful of occasions since she left Australia, the last occasion being 10 years ago.

30From the age of 12 you were raised by your father, who ran several businesses with varying levels of success.  Whilst your relationship with your father is somewhat strained after experiencing difficulties in a joint business, he remains supportive of you.

31You attended four primary and five secondary schools before completing Year 12 at Swinburne Senior Secondary College. 

32Within two days of leaving school, you set up a business with your father specialising in fuel injection.  The business folded in 2011 due to pressures brought on by the global financial crisis.

33Since 2011 you have had a history of casual employment in the transport and logistics sector.  Currently you are in receipt of Job Keeper payments and also run a small business from home, selling and repairing lawn mowers for on-sale, and you do occasional labouring.

34You were introduced to methamphetamine at the age of 24 and have struggled with an addiction ever since.  There have been times of abstinence before ultimately relapsing.  I note that despite that addiction, you did not offend because of it until you were aged 30.  Since then, it appears that a pattern of offending in the context of drug use has become entrenched.

35You have maintained a relationship with your present partner for five years and live together in a shared home.  Your friend, Mr Matassoni, speaks well of your basic character.

36Offending of this nature, that is, the charge that is before me today, can seriously affect public confidence in the courts, thus undermining the administration of justice.  The principle of general deterrence is significant, and with your background of repeated offending, specific deterrence is also important, particularly as this offending commenced with complete disregard of the conditions of a recently imposed community correction order.

37In the circumstances of your case, your attempts at deception were calculated, involved organising false documentation, were repeated and were only revealed after careful and time-consuming further investigation by the police.  Ordinarily, a sentence of immediate imprisonment would be the likely outcome.

38In mitigation, I have taken into account the matters urged upon me by your counsel, including:

·     your early plea of guilty for its utilitarian effect as well as an expression of remorse - the matter did resolve at committal mention at an early stage;

·     your longstanding struggle with drug addiction;

·     the recent commitment that you have made towards rehabilitation, including the partial compliance with your previous correction orders;

·     in particular, the recognition that you have shown for the need for residential detoxification and the efforts you have made in completing the initial Windana program;

·     I accept for the reasons set out in paragraph 6 of the defence written submissions that the offending should be viewed in the lower range of seriousness; and

·     that you have the ability to engage in paid employment and have the opportunity to commence that employment next month.

39The basic purposes for which a court may impose a sentence are punishment, deterrence (that is both specific to you and general to deter other persons who might be like-minded to commit offences), rehabilitation, denunciation and the protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

40On balance, in the particular circumstances of this case I am satisfied that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your immediate imprisonment.  It is patently clear that your offending over the years is for the most part fundamentally associated with your chronic drug addiction.

41In my experience, the only way to manage that type of addiction is first, by detoxification within a residential program, followed by the type of structured support program that is now open to you.  I accept that you are genuinely motivated, and whilst I am guarded about your prospects of success, I accept that interrupting the program you are now undertaking by imposing a sentence of imprisonment would seriously undermine your prospects of rehabilitation and would not ultimately be in the best interests of the community.

42I think it is reasonable to say also that this is likely to be your last chance.

43I intend to impose, with conviction, a community correction order.  The correction order should not be considered light punishment because of your commitments to directed programs and judicial monitoring.  You are already subject to two other community correction orders at this stage for which breach proceedings (a), in one case have been introduced, and (b), in the second case will shortly be.

44The conviction itself will stand on your record as serious offending.  Unusually for a sentence for this offending, I do not propose to impose conditions of unpaid community work.  You are already subject to two previous orders, one of which has imposed 200 hours of community work, and in my view any further order for work conditions will likely overwhelm your ability to comply with the orders and also undermine your ability to maintain your commitment to paid employment.

45If you breach this order, you will be brought back to court and the conditions most likely will be changed, including you being resentenced on the original charge, and with the prospect of imprisonment for a significant term.  If your rehabilitation cannot occur in the community with your efforts, then it will have to be directed into custody for the protection of the community.

46Mr Honan, could you please now stand?

47On Charge 1 of attempt to pervert the course of justice, you are convicted and ordered to serve a community correction order for a period of 24 months.

48The community correction order commences today and ends on 8 April 2023.  The Correction Centre you will attend is the Dandenong Community Correctional Services at 46-50 Walker Street, Dandenong and you must telephone there - the number is on the order which you will be given a copy of shortly - within two clear working days after the commencement of the order, that is by 4 pm Tuesday, 13 April 2021.  You must telephone there because due to the COVID pandemic, you cannot at this stage attend in person.  Do you understand that?

49OFFENDER:  Yes, I do.

50HIS HONOUR:  All the mandatory terms of a community correction order apply and the additional conditions I impose are that:

-   you be under the supervision of a Community Corrections Officer;

-   you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager;

-   you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager;

-   you undergo mental health assessment and treatment that may include psychological, neuropsychological and psychiatric, or treatment in a hospital or a residential facility as directed by the Regional Manager; and

-   you attend here at the County Court for judicial monitoring on 20 July 2021 at 1.30 pm.

51Now, I realise you have already had the mandatory terms of the community correction order explained to you, and you have seen them several times before, but I will go over them now so that you understand them clearly.

52The mandatory terms are that:

-   you must not commit another offence for which you could be imprisoned during the time that that order is in force;

- you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections Centre - such things as not attending drug or alcohol affected;

-   you must report to and receive visits from a Community Corrections Officer;

-   you must report to the Community Corrections Centre, that is the Dandenong Centre, by telephone within two clear working days of the order starting and as I have already indicated, that is by 4 pm next Tuesday, 13 April 2021;

-   you must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change;

-   you must not leave Victoria without first getting permission to do so from a Community Corrections Officer; and

-   you must obey all lawful instructions from and directions of Community Corrections Officers - such directions may be given either orally or in writing.

53Do you understand and agree to those conditions, Mr Honan?

54OFFENDER:  Yes, I do.

55HIS HONOUR:  Now, if you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Dandenong Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.

56However, I must warn you that if you breach any condition of this order, you will be brought back before the court.  One of the options open to the court is to cancel the community correction order and resentence you on the original charge, and you may also be dealt with separately for the breach by being sent to prison for up to three months.

57So, Mr Honan, do you understand the consequences of breaching your community correction order?

58OFFENDER:  Yes, I do.

59HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the sentence that would have been imposed is 30 months' imprisonment with a minimum period of 18 months to be served before eligibility for parole.

60I will now ask you to sign the community correction order that will be passed to you now through your counsel, and you may leave the dock for that purpose.

61Is there anything else from either counsel?

62MS GURRY:  No.  Thank you, Your Honour.

63HIS HONOUR:  I have now signed that order.  Thank you.

- - -