Director of Public Prosecutions v Janides

[2014] VCC 1703

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES ROBERT JANIDES

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	10 October 2014
CASE MAY BE CITED AS:	DPP v Janides
MEDIUM NEUTRAL CITATION:	[2014] VCC 1703

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. O'Doherty
For the Accused	Mr A. Patton

HIS HONOUR: 

1James Robert Janides, you have pleaded guilty to one charge of perjury and two uplifted charges of making a false report.  Those crimes carry maximum penalties of 15 years and 12 months respectively.

2You are now 43 years of age.  You pleaded guilty to a settled indictment and you must get the utilitarian benefit of that.

3Remorse is somewhat more problematic, however I do take into account that the plea has been made and that it has reduced the need for what would have been, I have no doubt, an unpleasant trial.  I also take into account that the result of such a trial would not have been a forgone conclusion.

4You have a very significant criminal history.  It involves numerous charges relating to violence.  There is dishonesty, threats to kill and without having gone into details of it with your counsel, it would appear violence and threats in the sense of domestic relationships.

5I cannot quite work out what has been spoken about in a couple of the reports that were tendered on your behalf but you have certainly reoffended since this offending occurred some three years ago, and it is only present circumstances, now, which give rise to any confidence.

6I take into account that the offending occurred three years ago.  I do not know what the reason behind all that was in terms of the committal being heard so late, but the fact of the matter is, that there has been a degree of water under the bridge since then.

7The circumstances of the offending, are that you had been in a relationship with the complainant, a Ms Kerrie Jones, for some years.  In 2010, in December, that relationship ended and she moved with her four children to Moe.

8On 16 August 2011, you had, by then, obtained a mobile phone with the complainant's details.  On that day, you began to use that telephone number to send threatening texts to your own phone number.  You then used those text messages as false evidence for the purposes of an application for an intervention order at the Magistrates' Court at Sale on that day.  That application was supported by an affidavit, and was patently false, and gives rise to the charge of perjury.

9An interim intervention order was granted and the matter was then adjourned for further hearing to 26 August 2011.  On 17 August, that is the day after the intervention order was obtained, you attend at the police station at Sale and made a statement saying that the complainant was continuing to send messages to you, saying you were "A dead man", and she was going to get somebody to kill you.  You said which number the calls were coming from.  You signed that statement as true and correct, and that gives rise to the first charge of false report.

10The next day, in the afternoon, you again attended the police station at Sale, and made a further statement to the police that she was still threatening you, and that you will get killed on your birthday, and that you were living in fear that her friends would come to your place and get you.  You signed that statement as being true and correct.

11Later on that same day, you again attended the police station at Sale and made another statement to the police, that despite the fact that you had been told, that morning, that she had been served with the intervention order you had applied for, she had sent another three texts that afternoon of a threatening nature.  You signed that statement as being true and correct.  The combination of those two statements gives rise to the second charge of false report.

12It is clear at the time that you made the second of those two statements on 18 August, that you were aware that she had been served with the intervention order.  The only purpose could have been to get that order breached, which may well have resulted in a custodial sentence.

13I accept what your counsel says, that in the end result, nothing over dramatic occurred, but the potential for this and what you were intending or trying to achieve is ugly offending, indeed, in my view.

14I have read the victim impact statement twice now, and there are matters which I do not take into account.  What is pertinent is as to the circumstances in which the complainant was arrested by police, not simply going to a police station, with one child still at school, terrified as to where her mother might be.  Had she been charged with that breach and kept in custody, it is anybody's guess what could have occurred.

15In any event, the offending has to be regarded as serious.  Perjury is always a serious offence.  It strikes at the very heart of the justice system.  False reports can vary considerably, and can simply be people telling fibs about who was driving a motor vehicle, all sorts of things.  I know that the false reports here are of a more sinister nature than that, but I am very conscious a false report as a crime carries a maximum penalty of only 12 months.

16General and specific deterrence must play a part in all this.  You have been around the traps long enough to know what the consequences are of this sort of offending.  There must also be denunciation and appropriate punishment.  A custodial sentence is inevitable.

17Your circumstances are that on 4 August this year, you were sentenced in the Magistrates' Court for a variety of charges, and I am not a party to all those, except I know there is one threat to kill, for a period of two years, with a minimum term of 15 months.  The Magistrate on that day, directed that 61 days be reckoned has having been served at pre-sentence detention, and obviously since that sentence was imposed on that day, you have served another 67 days of pre-sentence detention.  That means that the minimum term, give or take a week, that was imposed upon you still has some 11 months to run.

18I will now look to matters personal to you.  I have tendered before me, reports from Dr Aaron Cunningham and a local psychologist, Mr Bruce.  Mr Bruce regards you as having a paranoid psychopathology.  Interestingly, he says, "One must acknowledge that someone of Janides' mental condition would be almost impossible to live with."  That would seem to be borne out by significant parts of your criminal history.

19Be that as it may, I have also read the report of Dr Cunningham.  In combination, those reports can be regarded, I think, as saying this.  You were brought up in Glenroy.  From the ages of four to ten, you were sexually abused by a notorious paedophile known as Michael Glennon.  Michael Glennon, of course, is now dead.

20You did not report that abuse until, I am not a particularly good historian, but it would appear the 1990s, and a statement was made to police in 2003.  Each of the experts says that you have the symptoms of a post-traumatic stress disorder, or a complex post-traumatic stress disorder resulting from that abuse.  I accept that.  It has been said that a sexually abused child is very rarely a happy adult, and I suspect that you fit that category.

21You had drug use and have had alcohol abuse over an extended period of time.  Back in 2009, when your relationship with the complainant was still in existence, you were living in the area of Marysville when the Black Saturday occurred.  I accept that that exacerbated your post-traumatic stress situation.  There was a child lost, on the material before me, and people you knew were killed.  I take that into account as well.

22I am told, I have no reason to doubt, that when you are having difficulty coping, you resort to, certainly, alcohol, and in the past, drugs.  I also accept that when you're in the scenario, your capacity to rationalise as to your conduct may be somewhat limited.  However, as I have indicated, you have been around the traps.  You have received gaol sentences and all sorts of dispositions for threat to kill and conduct directed towards others and directed towards partners and you must know what the ultimate consequences have to be.

23I do not accept that, in your particular situation I will describe in a moment, that your mental disabilities make gaol harder for you.  In fact, I think you are doing better than you were obviously doing before you went into custody back in May of this year, for matters that occurred in the Portland Warrnambool area.

24Your history, in short, is that you finished at Glenroy High School at the age of 16.  You left home, worked on various farming properties around the Shepparton area.  You completed a butchers' apprenticeship, I am told, but never undertook employment as such.  You have taken livestock and horse management course through TAFE.  You have worked with horses since leaving school and have worked as a trainer, as a horse breaker and as a farrier.  It is your intention, you say, upon your ultimate release to return to the Western District and work in the area of animals.

25What has been occurring since you were sentenced in August, I know that you have been now placed in Dhurringile Prison, that is what used to be described as an open prison, and to be there, they must regard you as of being relatively, at least, low risk of reoffending.  In that position, you have been given responsibility in regard to the gaol's dairy herd and you appear to be getting a great deal of satisfaction from that.  I think, probably, even more importantly, is that, and I accept this from the Bar table and the difficulties of getting documentation for this, that since you have been in there, you have done nine out of twelve weeks of a violent behaviour program, which is two days per week.  You have done a short drug and alcohol course and you are now in the process of commencing a longer course which will be linked in with psychiatric care.  That course will be, as I am told, specific to you.

26Since you have been in Dhurringile, you have now been receiving appropriate psychiatric treatment on a weekly basis.  How that has been dealt with in the past, I do not really know.  I notice in the report of Mr Cunningham, that you appear to have been seeing a psychologist in the year leading up to his making that report.  But also within that period of time, you would appear to have reoffended on more than one occasion.

27However, the circumstances at present are that, obviously, you are in a protected environment, of that being a gaol.  Your previous experience in gaol was some ten years ago, which was very traumatic for you.  That does not appear to be the case now, and you seem to be using this time to get the appropriate psychiatric treatment, to get the appropriate alcohol treatment and to, upon your ultimate release, have a reasonable chance of complying with any period of parole that you are granted.  So in simple terms, at the present moment, you are medicated and psychiatrically stable.

28I have taken into account, obviously, all the matters contained within those psychological reports.  You still have family, though your father is now more elderly and, as I understand it, frail.  You do not have visits in prison because of that, and I take that into account.

29As to the prospects of your rehabilitation, one would have to be guarded.  You have been in the criminal system for a long time now, Mr Janides.  The risk of your reoffending is also very problematic.  The first question that is asked by Dr Walton about reoffending is, has he done it before, and unfortunately in your situation the answer to that is, often.

30However, it is the situation where I can only sentence you for what you are actually charged with and what you actually pleaded guilty to.  I have great sympathy for the victim impact statement that was presented on behalf of the complainant but, as would have been explained to her, I am not here to sentence you for an entire relationship, I am here to sentence you for one specific course of conduct over a period of three days, albeit serious conduct.

31In that scenario, there has to be between the three charges significant concurrency.  For reasons of totality, there also has to be significant concurrency with the sentence you are presently undergoing.  However, that concurrency should not be such as to render the punishment for these matters, which I have said are serious, to appear to be trite or only nominal.

32Taking all those matters into account and the succinct submissions put on your behalf by your counsel, on the charge of perjury, you are sentenced to imprisonment for a period of 15 months.  On the first charge of make a false report, four months, and on the second charge, four months.  I direct that two months of the charge on the first false report and one month of the sentence on the second false report be cumulative upon each other and upon the perjury charge.  That give a total effective sentence of 18 months.

33I direct that ten months of that sentence be cumulative upon the sentence you are currently undergoing.  In these circumstances, pursuant to s.16 as your original parole period has not as yet expired, it is my position to set a new one.

34Accordingly, taking those matters into account, I direct that commencing from today, you serve a minimum term of 16 months before becoming eligible for parole, which is, in effect, a five month increase on the minimum term that you were originally given.  There is no pre-sentence detention to be declared.

35Can I say this, insofar as s.6AAA is concerned, in the particular circumstances of this matter, it is meaningless.  For one, a jury could not have convicted you of make a false report, in any event, as I understand it.  But, also you were charged with even more serious offences at the outset.  I simply say this to you, not as a formal 6AAA but as an indication of the benefit of having sensibly resolved this, had this proceeded to trial in front of a jury, and you been convicted of perjury and pervert the course of justice, in these circumstances, the head sentence that you got for this would have been somewhere between three and four years.  The minimum term is impossible to say, because I do not know what your circumstances would have been.

36No other orders that I need to make?

37OFFENDER:  So what my early release, Your Honour?

38HIS HONOUR:  He will explain to you.

‑ ‑ ‑