Director of Public Prosecutions v Kellalea

[2023] VCC 1264

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00291

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MONICA KELLALEA

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2023
DATE OF SENTENCE:	19 July 2023
CASE MAY BE CITED AS:	DPP v Kellalea
MEDIUM NEUTRAL CITATION:	[2023] VCC 1264

REASONS FOR SENTENCE

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Subject:               Criminal Law. Sentence upon plea of guilty.

Catchwords:        Pervert the course of justice – Deceived the sentencing judge by

providing two fraudulent character references – Early plea of guilty –

Covid-19 delay – History of drug abuse – Prospects of rehabilitation.

Legislation Cited: Criminal Procedure Act 2009.

Cases Cited:       DPP v Kellalea [2021] VCC 2186; DPP v Tokava [2006] VSCA 156;

Boulton v The Queen [2014] VSCA 342; Worboyes v The Queen [2021]

VSCA 169; Hill v The Queen [2021] VSCA 349; Donohue [2019]

VSCA 160; Zotos v The Queen [2014] VSCA 324, Saleem v The Queen

[2014] VSCA 190; DPP v Feltham [2018] VCC 1187; DPP v Fairclough

[2020] VCC 152; R v Dipalna [2023] VCC; DPP v Sahdev [2017] VCC

1025; DPP v Tansey [2016] VCC 1051; DPP v Davoren [2018] VCC 1581.

Sentence:           Total Effective Sentence of 7 years and 6 months imprisonment with a

new non-parole period of 4 years and 8 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Picone	Ms A. Byrne
For the Accused	Ms J. Pisasale	Mr A. Fisher

HIS HONOUR:

1Monica Kellalea, you have pleaded guilty to one charge of perverting the course of justice.

2The circumstances of your offending were outlined in a document tendered to the court which was accepted as a set of agreed of facts and exhibited upon your plea by the prosecution.  I will summarise the circumstances.

3You are currently aged 38 years.  You were 37 years old at the time of the offending.

4On 7 April 2020 police officers executed a search warrant at a property in Healesville where you were living with your partner.  A number of drugs were found being pentylone, methamphetamine, leading to charges of trafficking in a drug of dependence.  Cannabis, butanediol, diazepam, encompassed in charges of possession of a drug of dependence and sertraline, the subject of a related summary offence.

5Following guilty pleas to these charges and a plea hearing in November 2021 you appeared before His Honour Judge Smallwood of this court in the Shepparton County Court for sentence.  See DPP v Kellalea [2021] Victorian County Court 2186 on 3 December 2021.

6Prior to the plea hearing the legal practitioners acting on your behalf prepared material on which to rely during the plea hearing.  Included within this material were two-character references which you had provided to them. 

7The first was purported to be authored and signed by Kerri Hodgson, the Hodgson reference and the second was purported to be authored and signed by Katie Myles, the Myles reference.

8The Hodgson reference was addressed to Judge Smallwood and detailed the close friendship over 20 years between Ms Hodgson and you and how you had helped her over the years.  This included comments about how you had supported Ms Hodgson by picking up her two children every Thursday from school and even cooking meals for the family after the birth of her son.  Additionally, the reference confirmed Ms Hodgson's support for you and asked the sentencing court to take the letter into consideration at the time of sentencing.  Ms Hodgson attended the plea hearing online and heard that Ms Myles was also a character reference.

9The Myles reference was also addressed to Judge Smallwood.  It was printed on an 'Immerse Yarra Valley' letterhead.  It detailed how you had worked at the restaurant Immerse at which Ms Myles was the operations manager.  Additionally, it detailed your purported work history and work ethic at the restaurant as well as the level of trust placed in you in the handling of large sums of cash.  The reference was, it was noted, provided in full knowledge of the offender's charges of drug trafficking and possession as well as in the hope that the letter would show the sentencing court your good character.

10Judge Smallwood provided formal reasons for sentence.  In relation to the two character references His Honour made specific reference to them saying,

'I have read the character references that have been tendered on your behalf and they speak very well of you in terms of your own character and your situation as a mother.'

11You have no real and significant mental health history and prior to you being released on bail you had never received treatment or been medicated for any problems.

12Judge Smallwood determined to place you on a community corrections order with conviction for four years.  Discretionary conditions were added including 300 hours of community service, treatment and rehabilitation for drugs, mental health assessment and treatment and supervision.

13Ms Myles, in fact, was the operations manager at Immerse Winery at which she is now the general manager.  You had also worked at Immerse during 2019, however, you had been given several warnings for drinking at work.  You admitted to having a drinking problem at the time and the workplace assisted you with paying for counselling sessions.  In December 2019 after having been found again drinking at work you were confronted and given the option to resign, which you did.

14In 2021 Ms Myles became aware from an article in a local paper that you had been charged with drug trafficking.

15On 4 February 2022 Ms Myles became aware that you had been involved in a serious car accident in which you had sustained serious injury and that another person involved in the accident had died.

16Sometime in February or May 2022 Ms Myles and Ms Hodgson spoke to each other about you having been arrested and charged with culpable driving causing death.  In this conversation Ms Hodgson discussed your prior conviction for drug trafficking and she asked Ms Myles about being a character reference for you on that occasion.  This was the first time that the two had discussed this matter and it became apparent to both of them that character references actually meant written documents.

17On 7 May 2022 Ms Myles made a formal complaint to police and in June 2022 she spoke with an officer from the Major Collision Investigation Unit who then sought to obtain copies of the character references from the County Court.

18In July 2022 Ms Myles saw the Myles reference and confirmed that she did not author nor sign it and would never have done so.

19Similarly in mid-July Ms Hodgson was provided a copy of the Hodgson reference and although Ms Hodgson attended the court hearing she did author nor sign any character reference for you.

20Following legal advice, you declined to be interviewed by police in relation to this matter.

21The criminal conduct which is the subject of this offence is the provision of two fraudulent character references to the sentencing judge.  In doing so you perverted the course of justice and intended for your conduct to pervert the course of justice.

22As was made clear during the hearing the course of justice here was that which the County Court was undertaking. That is to hear and determine the plea and sentence which commenced with the laying of the drug trafficking charges against you pursuant to s6 of the Criminal Procedure Act 2009.

23His Honour Judge Smallwood made clear in the reasons for sentence that he took these fraudulent character references into account when formulating his sentence.  The course of justice was therefore perverted because of your conduct.  It adversely interfered with the court from administering justice free from fraudulent information.  By doing so the integrity of the court was eroded.  It was, in effect, denied knowledge of the true circumstances and facts of the case, namely, that both Ms Myles and Ms Hodgson had not provided character references for you.

24At the time of the plea I enquired as to the presence of Ms Hodgson in the court, at the time that your plea was made and how that had come about and whether that was part of the circumstances of the criminality alleged in this matter.

25The court was informed that Ms Hodgson was present via Zoom link as was frequently the case during the recent hearings during the COVID-19 pandemic.  The prosecution, however, was not able to say how this situation had come about but relied on Ms Hodgson's statement in the depositions.  She states that she had known you for just over 20 years and you had been one of her best friends in that time.  That she had spoken to you on 16 November 2021, the day before the plea, and that on this occasion you had expressed your wish for her to attend the plea hearing 'as a character reference'.

26The day of the plea Ms Hodgson heard during the course of the plea that Ms Myles was also a 'character reference' although Ms Myles was not present by Zoom or indeed in person.  It was not until February 2022 that this matter resurfaced.

27As I have explained, Ms Myles was made aware that you had been involved in a very serious car accident and as a result of which you had been injured and a woman named Melinda had died.  Melinda was a close friend of a couple of staff members in the Myles family business which was Immerse Winery in which Ms Myles was the operations manager and you had been employed there.

28Ms Hodgson told her that at the hearing for those charges which she had attended via Zoom she had heard that the judge had considered character references by herself and Ms Myles and therefore they went to the police to report the matter.

29Ms Hodgson stated that the reference was false and misleading.  The document has her correct address at the top.  The Hodgson's letter correctly identifies you as a longstanding friend, then proceeds to describe you in glowing terms.  An upright community member ready to assist at school and personally.  Remorseful and willing to accept responsibility.  An honourable individual and loyal best friend.

30The Myles letter refers to your history at the winery.  Moving up to being a restaurant manager, a hard worker, a team leader and teacher, trustworthy with large sums of cash, remorseful and of good character.  Ms Myles told police she would not have written such as reference as it,

'Would not be very wise to ask me to be a character reference as I would simply tell the truth and say you no longer worked for the winery due to your substance abuse'.

31It is plain that in practising your deception of the court you used some truth and either exaggerated your standing in the eyes of Ms Myles or omitted the truth of the issues you faced at the winery.  Your Hodgson letter may well have truthfully recounted your years of friendship but she considered your appraise for yourself contained in her purported letter to be misleading and false.  You not only deceived the sentencing judge, you breached your friend's trust and friendship in order to obtain a better outcome in court in terms of your sentence.

32His Honour, a very experienced criminal judge, noted at paragraph 11 of his sentence that sentencing principles applicable to a sentence for a charge of trafficking drugs to the volume involved there would 'commonly attract an active custodial sentence'.  Having so noted His Honour turned to the material provided on your behalf which in view of the principles in DPP v Tokava at paragraph 13 reflecting the principles in Boulton he was persuaded to apply.

33He recited your history, noting your role in the offending at paragraph 17 and your age, lack of priors and family background and at paragraph 18 he noted the character references tendered on your behalf specifically.

34I do not suggest that His Honour founded his determination primarily upon those references.  Clearly your plea and the report of Mr Newton and other material which led him to his sentence were significant factors.  However, there can be little doubt that such references bolstered his finding that your prospects of rehabilitation were 'very, very encouraging'.

35He placed you on a four-year community corrections order with 300 hours of unpaid work and other conditions.  Given the seriousness of the charges this non-custodial disposition was for you a good outcome.

36Perverting the course of justice is a serious criminal offence.  Because it has been enunciated often it strikes at the heart of the justice system.  Any such perversion results in harm to the rule of law that lies at the heart of our civilised society and here at the very least the potential to harm public confidence, trust and safety.

37The offence can be committed, of course, in a wide variety of ways but are fortunately relatively rare.  Here your criminality did not involve threats of violence, the dissuasion of a witness from giving evidence or other high-end criminality.  But it was not spontaneous and in its calculated way to avoid serious consequences for yourself it was premeditated and implemented with some cunning to deceive the court.

38Such planning and its execution raise the seriousness of the offending and highlights the moral culpability of your actions.  Although you did not coerce or recruit another or others your egregious breach of trust and friendship towards the two purported letter writers adds to the gravity.  To have designed this deception for the curial setting and inviting one of the purported writers to be present in court was a particularly calculating and brazen act.

39The charge calls for sentences that are sufficient to denounce the conduct even for conduct falling in the lower range of seriousness and to deter others from this kind of behaviour aimed at denying the court knowledge of the true circumstances or facts relevant to the case.

40The commission of the culpable driving offence breached the community corrections order which His Honour imposed and the contravention was determined by His Honour when he dealt with you for the driving offence.  He described in his sentence what occurred after the imposition of the community corrections order for the drug offences as you, 'dropping your bundle' and you started using again.  You lapsed back into drug use and that drug use and driving whilst affected cost a woman her life and the community a dear member as His Honour noted.

41He sentenced you to a term of imprisonment and as to your prospects of rehabilitation he said, 'He had no idea really'.  He sentenced you to seven years imprisonment with a four-and-a-half-year non-parole period having aggregated 12 months on the resentencing for the trafficking charge, as I understand, it being totally concurrent with the culpable driving sentence.

42Perverting the course of justice carries a 25-year imprisonment maximum.  The variety of offending spectrum means that caution is required as that maximum may not provide guidance in and of itself in sentencing for such a charge.  However, I take into consideration that no doubt such high maximum must apply to much more serious cases than yours.

43I take your plea into account.  The plea, I accept, is accompanied by remorse for your actions.  It was made at the earliest stage of the proceedings and carries with it a utilitarian benefit of having avoided a trial and is a demonstration of you taking responsibility which facilitates the course of justice.  The plea will reduce your sentence.

44It is also made at a time in which the criminal justice system is endeavouring to recover from the impacts of the pandemic which, however, persists.  The plea, in the face of backlog and delays, does carry significant importance.  It is also made at a time in which the pandemic uncertainty and conditions are still impacting on the correctional services and I do take into account that this is your first time in reclusion and it has been served in this COVID-19 scenario of isolation and lockdown measures with restrictions required on programs, work, movements and visits.

45It is also made in reasonable expectation of cumulative imprisonment.  The Worboyes principles therefore do apply to attract a more pronounced amelioration than any other time which must be palpable.

46I take your personal circumstances into account as I have recited them above.  Your history and background which I will set out now.

47You had an unremarkable life until your early 30s.  You have always worked and had a very good work record.  A serious of failed relationships changed your life.  At age 32 you started using amphetamines and ice and developed an addiction which progressed in severity rapidly to dominate your life.

48His Honour Judge Smallwood noted this when he sentenced you for trafficking drugs.  He noted you were having episodes of psychosis, psychological problems and attendant financial difficulties.  At the time of sentencing, you on the culpable driving His Honour also acknowledged the fact that you were a loving mother of two children.  When His Honour sentenced you for the trafficking matter he found you had been 'making really significant efforts' with an extension of the CISP program because of your positive progress, particularly in relation to dealing with your drug use and psychological assistance throughout 2020 and 2021.

49His Honour noted your level of functioning was starting to improve, however, it was a recovery in its early stages.  Unfortunately, you failed to take up the opportunity His Honour's sentence of a community corrections order offered for ongoing rehabilitation.  You started using again.

50Having lapsed back into drug use the cost of that was catastrophic and you were imprisoned for culpable driving.

51In gaol you have endeavoured to reassess your life and have been accessing regular counselling.  Your injuries from the motor vehicle accident are still operative to some extent and require substantial treatment and such treatment in custody is ongoing.

52The separation from your children has caused you real grief.

53Your parents who remain together are supportive of you.  Your father is a house painter and mother works in business administration.  You were educated to Year 10 and completed TAFE courses in hospitality.  You worked for the De Bortoli Winery, Croydon Hill Bakery, Mount Evelyn Café and the Coldstream Roadhouse.

54In 2011 to 2020 you worked at the Immerse Winery and then at the Healesville Butchers.  Your children are aged about 13 and nine.  Their father, with whom you had a relationship from 2001, works in a timber yard.  The two of you had a home in Healesville from 2009, however, you separated in 2016 maintaining a co-parenting arrangement under the same roof until your remand.

55In 2018 you commenced a new relationship but in 2020 your new partner was gaoled.  Your children are now in the care of their father and paternal grandmother at Healesville.  You speak to your parents and your children's father every week during calls with the children.  You hope upon your release to live close to the children at your parent's home.

56I understand that your leg still needs surgery whilst in custody.  You also contracted COVID-19 which required you to be placed in quarantine and effective isolation for a week.

57Your parole period will expire in March 2029 and while in custody you have become a team leader in industries working for Abey Australia and have undertaken drug treatment programs, a Salvation Army positive lifestyle program, a peer listening program, occupational health and safety training, safe food handling course certificates 2 and 3, a retail services course and a life skills program.  The court received a number of letters and certificates attesting to participation in these programs.

58The letter and summary report from Andrew Constable, acting supervisor at Prison Industries at the Dame Phyllis Frost Centre, outline your efforts in the industries and is impressive. 

59Tamara Halliburton, a counsellor at WestCASA, wrote a letter to the court outlining your progress through counselling from July 2022.  Your attendance has been consistent and engaged, bravely sharing past traumatic and painful events.  The letter provides praise for your efforts and expresses support for you. 

60You wrote a brief note yourself to the court explaining your offending and describing your efforts whilst in custody.  You wrote that you were ashamed and embarrassed about the offences and could not request a reference from friends.  You were scared and worried about being imprisoned and the impact that would have had on your children.  Having realised the nature of your errors you express current shame and embarrassment.

61Your candid letter, I accept, describes your motivation for such a hare-brained scheme and criminal scheme.  You could have probably been better served by asking them, your friends, to provide a letter for you.  They would probably have written for you letters which truthfully would have swayed the judge as much as your lies ultimately did.

62It is of no consolation or adequate excuse and explanation that the letters contained some truthful information about employment and associated responsibilities.  This was not the personal opinion of the writers so they were false.

63However, I accept you are remorseful and the passage of time and your predicament after these matters have brought fresh understanding to you of the wrongfulness of your endeavours to secure a good outcome by deceiving the court, which it would appear in any event would have treated you mercifully.

64In looking at current sentencing practices in relation to this offence I have read a number of cases which, in broad terms, may be seen to discuss the application of principle to the sentencing discretion.  Although false documents and references appear in some cases referred to the circumstances of the offending and offender are on a spectrum of significant variety and not precise comparators.

65I have referred to Hill v The Queen [2021] VSCA 349, Donohue [2019] VSCA 160, Zotos v The Queen [2014] VSCA 324, Saleem v The Queen [2014] VSCA 190. I also referred to some County Court of Victoria decisions. The DPP v Feltham [2018] VCC 1187, the DPP v Fairclough [2020] VCC 152,
R v Dipalna [2023] VCC, the DPP v Sahdev [2017] VCC 1025,11:06:11 the DPP v Tansey [2016] VCC 1051 and the DPP v Davoren [2018] VCC 1581.

66I am conscious of the principal of totality and its application in this case to achieve a proportionate and appropriate disposition.  In my view the sentence should represent a clear statement of denunciation, deterrence and punishment whilst endeavouring to foster rehabilitation given your progress during your current imprisonment, your age and antecedence.

67On pervert the course of justice you are convicted and sentenced to 18 months' imprisonment.

68I order that six months to be cumulative on the sentence for culpable driving. 

69I therefore order that a new total effective sentence be fixed at seven and a half years and set a new non-parole period of four years and eight months upon your current sentence.

70I do not think that there are any ancillary orders that I need to make in relation to this matter.

71MS PICONE:  No, Your Honour.

72HIS HONOUR:  Thank you.  Ms Pisasale, I see that the link with Ms Kellalea is still on.  If you wish to speak to her in relation to the sentence or about any other matter then I will leave the Bench and you can have that time if you wish.

73MS PISASALE:  Thank you, Your Honour.  I'll take that time.

74HIS HONOUR:  Thank you.

75MS PICONE:  Your Honour, it may be a little artificial in this case but technically a 6AAA - - -

76HIS HONOUR:  No, you're right.  Just pardon me for a moment.  Yes.  But for Ms Kellalea's plea I would have sentenced her to 24 months with a 12-month minimum.  Thank you.  Sine die. - - -