Director of Public Prosecutions v Kearns

[2024] VCC 1469

HER

IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-24-00397

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DENNIS KEARNS

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Shepparton
DATE OF HEARING:	10 September 2024
DATE OF SENTENCE:	18 September 2024
CASE MAY BE CITED AS:	DPP v Kearns
MEDIUM NEUTRAL CITATION:	[2024] VCC 1469

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Attempt to pervert the course of justice

Legislation Cited:      Sentencing Act 1991

Cases Cited:DPP v Monteroso [2022] VCC 2368; DPP v Foster [2016] VCC 1257; DPP v Constable [2020] VCC 1439; DPP v Pullin [2020] VCC 31; DPP v Kharal [2021] VCC 1755; DPP v Cruikshank and Tassopoulos [2021] VCC 2121

Sentence:                  18 month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Offender	Ms M. McDonald	Slades & Parsons

HER HONOUR:

1Robert Kearns, you have pleaded guilty before me to one rolled up charge of attempt to pervert the course of justice, comprising two incidents.  You have also pleaded guilty to one related summary charge of committing an indictable offence whilst on bail.

2The maximum penalty for attempt to pervert the course of justice is 25 years imprisonment.  For committing an indictable offence whilst on bail it is three months imprisonment or 30 penalty units.

Circumstances of offending

3The circumstances of your offending were outlined in the Summary of Prosecution Opening for Plea dated 14 March 2024.  I shall summarise those circumstances here.

4Between June and December 2022, police executed 3 search warrants at your Mooroopna address.  As a result, some $36,688.50 in cash was located, amongst other items, and you were charged with dealing with property suspected of being the proceeds of crime in relation to this money. 

5You entered pleas of guilty on 10 January 2023 but negotiations as to the precise quantum that you were pleading to continued between the prosecution and your lawyers.

6On 27 February 2023 you went to Beckie Solway’s house in Mooroopna, taking with you a blank statutory declaration.  You told Ms Solway that you needed her to say that she had paid you $12,000 for a vehicle so you could give the declaration to police and recover some of the seized cash.

7Ms Solway completed the statutory declaration, writing 'I, Beckie Solway, did give Robert Kearns the sum of $12,000 on the 1/7/22 for a Nissan Patrol.'

8You and Ms Solway went to a pharmacy in Mooroopna and had the document witnessed as true and correct, even though she had never given you any money.   

9You provided the signed document to your lawyers who provided it to Victoria Police.  Police duly advised that they did not accept the declaration as truthful and they noted it was not appropriately witnessed.

10On 24 March 2023, you returned to Beckie Solway’s house where she was present with Ms Kahlia White.  You said you required a further declaration as the first one was not accepted.

11Ms White filled out the blank document, writing 'I brought a Nissan patrol 2006 4WD of Robert Kearns of 41 Fairway Drive, Mooroopna, for the sum of $12,000.00 [sic].'

12Ms White and Ms Solway then went to the pharmacy and Ms Solway had the document witnessed as being true and correct.  She had in fact never given you any money but returned home and gave you the signed and witnessed declaration.

13On 27 March 2023 your solicitors provided the statutory declaration to police. 

14On 24 April 2023 you were interviewed by police and answered 'no comment' in relation to the allegations. 

Offence gravity

15Attempt to pervert the course of justice is a very serious offence, as reflected in the 25 year maximum set by Parliament.  It is an offence which strikes at the heart of the criminal justice system. 

16In this case, your attempt to undermine justice was unsophisticated and unlikely to succeed but it involved 2 false statutory declarations completed by Ms Solway at your behest over a 3 week period.  It was a persistent attempt to deceive police.

Plea of guilty and remorse

17You pleaded guilty on the day of the committal, prior to any witnesses being called.   You have saved the community the time and expense of running a trial.  As such, you have facilitated the administration of the justice and you are entitled to a benefit for that.

18By your plea of guilty, you have demonstrated some acceptance of responsibility for your offending and a degree of regret, if not remorse.

19Carla Lechner, whose report I shall return to shortly, opines that you understand the seriousness of your actions.  I accept that you regret your involvement in these offences and the legal predicament in which you now find yourself. 

Personal circumstances

20I turn now to your personal circumstances. 

21You are 44 years of age, having been born in Taranaki, New Zealand, in November 1979.  You are the youngest of 4 children and your family moved to Australia, settling in Gosford when you were 14 years old.

22You attended school to the equivalent of Year 8 in New Zealand but did not attend any formal education in Australia. 

23You worked in a family furniture removal business for some 4 years until you were imprisoned in New South Wales.  You then worked as a fruit picker until your mother became ill and you moved to Victoria to care for her. 

24You have 7 children, 4 of whom have been in your sole care since their mother moved interstate some years ago.  Two of these children currently reside with you, the other two coming and going regularly.  You also have a four-year-old daughter with whom you have daily contact, although she does not live with you.

25You have a significant history of drug addiction, using cannabis, speed and later ice regularly.  Your father died in 2018 and your drug use escalated.  You are seeing a drug counsellor fortnightly, having initially seen them weekly pursuant to a Community Corrections Order. 

26You and your children are supported by the organisation 'Putting Families First.'  Several of your children are engaged with the criminal justice system and like you require support with drug counselling and mental health treatment.  You are reportedly well engaged with the program and a key support to your children, providing stable accommodation and a constant presence. 

27You are in poor health and suffer several heart related conditions, namely:

(a)   Aortopathy - with significant dilatation of the ascending aorta;

(b)   Moderate aortic regurgitation;

(c)   Probable previous vertebral artery dissection; and

(d)   Hypertension.

28Your capacity to work is restricted by your health, however, you are currently subject to a Community Corrections Order and have been doing unpaid community work at 'Eat Up,' an organisation making lunches for children who would otherwise go without.

29You were assessed by psychologist Ms Carla Lechner who reports that testing found you 'likely to be mildly psychologically distressed.'  She also found your test results to be 'indicative of a diagnosis of Adult ADHD.' Ultimately, she says you present with symptoms of Stimulant Use Disorder (in remission), Cannabis Use Disorder, Adult ADHD and Adjustment Disorder with Depression. 

Sentencing principles and considerations

30Mr. Kearns, this was very serious offending, offending that ordinarily attracts a prison sentence.  By submitting these false statutory declarations you sought to deceive the police.  That is what I mean when I say your offending strikes at the heart of the justice system.  It is fundamental that police are not deceived and it is only because your documents were so blatantly false that they were not acted on.

31General deterrence is of paramount importance.  Others in the community minded to act dishonestly as you have done must recognise that the offending is serious and that punishment will follow. 

32Specific deterrence is also a relevant consideration.  You have a number of prior convictions, many for dishonesty offences. You need to appreciate that such conduct will not be tolerated by the courts or the community. 

33Community protection, just punishment and denunciation are all relevant factors in the sentencing synthesis.

34Ms Solway was sentenced to an adjourned undertaking for perjury for her part in this offending.  I note the principle of parity, but I consider you to have been the instigator of this offending which would not have taken place but for your desire to fool the police and have returned to you money that was not yours. 

35Your counsel, Ms McDonald, provided me with a number of comparable cases, namely DPP v Monteroso [2022] VCC 2368; DPP v Foster [2016] VCC 1257; DPP v Constable [2020] VCC 1439; DPP v Pullin [2020] VCC 31; DPP v Kharal [2021] VCC 1755; and DPP v Cruikshank and Tassopoulos [2021] VCC 2121. All can be distinguished from the instant offending, however, I take them into account as far as their similarities go.

36Taking current sentencing practices into account, together with the principle of parsimony, I had you assessed for a Community Corrections Order.

37The Corrections assessor found that you are a medium risk of reoffending and that you continue to use cannabis.  I do however note the good progress you have made on the order to which you are currently subject, completing almost half of the ordered work hours and participating in treatment programs.    

38I have decided to impose a Community Corrections Order in your case. However, let me make it abundantly clear Mr Kearns, that any breach of the order I am going to impose will see you brought back before me and will almost certainly result in you serving a period of immediate imprisonment. 

39Please stand.

Disposition

40On Charge 1, a rolled-up charge of attempt to pervert the course of justice, you are sentenced to be released on a community corrections order for a period of 18 months with conviction: 

(a)   You are to report to the Shepparton Community Correctional Service office within two business days of today;

(b)   You are to complete 100 hours of unpaid community work;

(c)   You are to undergo supervision;

(d)   You are to participate in treatment and rehabilitation for drug dependency;

(e)   You are to participate in programs to reduce reoffending; and

(f)    25 program hours may be credited towards your unpaid community work hours.

41Do you agree to enter into this community corrections order, Mr Kearns.

42OFFENDER:  Yes, Your Honour.  

43HER HONOUR:  We will have that prepared in a moment.

44On related Summary Offence 2, commit indictable offence on bail, you are sentenced with conviction to pay a fine of $250. 

45Had you not pleaded guilty, pursuant to s6AAA of the Sentencing Act 1991, the sentence I would have imposed would have been 12 months imprisonment with a non-parole period of 6 months. 

46Would you please provide the community corrections order to Mr Kearns.  Thank you, Mr Kearns, you may be seated for the moment.

47OFFENDER:  Thank you, Your Honour. 

48HER HONOUR:  A copy of that order will be provided to you before you leave the court today.  Is there anything else, Mr Cordy, for today.

49MR CORDY:  No, there's not, Your Honour.

50HER HONOUR:  Ms McDonald, is there anything else from your perspective.

51MS McDONALD:  No, Your Honour. 

52HER HONOUR:  Thank you for your assistance, Ms McDonald, and Mr Cordy, thank you for your assistance throughout the circuit, it's appreciated.

53MR CORDY:  Thank you, Your Honour. 

54HER HONOUR:  We'll stand down until 10.30 today.

55MS McDONALD:  As the court pleases.

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