Director of Public Prosecutions v Kemp
[2023] VCC 266
•27 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-22-01996
CR-22-01994
Indictment No. N10610783
N10606416
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN KEMP |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 31 January 2023 | |
DATE OF SENTENCE: | 27 February 2023 | |
CASE MAY BE CITED AS: | DPP v Kemp | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 266 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: On Indictment N10610783 – Sentence – one charge of make threat to kill– plea of guilty – one uplifted summary matter – committing an indictable offence involving attempting to pervert the course of justice while on bail – plea of guilty
On Indictment N10606416 – sentence – one charge of attempting to pervert the course of justice – one charge of possession of a drug of dependence – pleas of guilty
Legislation Cited: Crimes Act 1958, s20; Summary Offences Act 1966, s9(1)(e); Criminal Procedure Act 2009, s145; Drugs Poisons and Controlled Substances Act 1981, s73(1); Bail Act 1977
Cases Cited:Phillips v R [2012] VSCA 140; Worboyes v R [2021] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence thirteen months imprisonment; 336 days of pre-sentence detention reckoned as time already served; 6AAA declaration for Indictment N10610783 fifteen months imprisonment; ten months imprisonment for N10606416.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Katz | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms K. Powel | Victoria Legal Aid |
HIS HONOUR:
1Darren Kemp, on 31 January 2023, you pleaded guilty to the following offence on Indictment N10610783:
Charge 1 – that you at Port Welshpool in Victoria on 19 March 2022, without lawful excuse, made to Mark McDonald, a threat to kill Mark McDonald, intending that Mark McDonald would fear that the threat would be carried out or being reckless as to whether Mark McDonald would fear whether this said threat would be carried out.
The offence of making threat to kill is contrary to s20 of the Crimes Act 1958 and carries a maximum of Level-5 imprisonment (10 years).
2One summary charge was transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. On the 31 January 2023, you agreed to have that matter heard before this Court and plead guilty to the uplifted charge:
Uplifted Charge 4 – that you at Port Welshpool on 19 March 2022, did enter a private place, namely, a private residence situated on Port Welshpool Road, Port Welshpool, without express or implied authority from the occupier or any lawful excuse.
Such offence is contrary to s9(1)(e) of the Summary Offences Act 1966 and carries a maximum penalty of 25 penalty units or six months’ imprisonment.
3Also on 31 January 2023, you pleaded guilty to the following offences on Indictment N10606416:
Charge 1 – that you, at Hedley in Victoria on 26 March 2022, with intent to pervert the course of public justice, did an act which had a tendency to so pervert the course of public justice, in that you asked Clancee Fearnley to make a false and misleading statement to police in relation to firearms that were located by police on 24 March 2022 at the property of the co-offender, Matthew Kemp, situated at 5 James Road, Hedley in Victoria.
The offence of attempting to pervert the course of justice is contrary to common law and carries a maximum penalty of Level-2 imprisonment (25 years) – see s320 of the Crimes Act 1958.
Charge 2 – that you, at Stacey’s Bridge in Victoria on 28 March 2022, possessed a drug of dependence, namely methylamphetamine.
The offence of possessing a drug of dependence is contrary to s73(1) of the Drugs Poisons and Controlled Substances Act 1981 and carries a maximum of 30 penalty points or Level-8 imprisonment (one year) or both.
4One summary charge was transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. On 31 January 2023, you agreed to have this matter heard before the Court and pleaded guilty to this uplifted charge.
Uplifted Charge 4 – that you, at Hedley in Victoria, on 27 March 2022, did commit an indictable offence – attempt to pervert the course of justice while on bail.
The offence of committing an indictable offence while on bail is contrary to s30B of the Bail Act 1977 and carries a maximum penalty of 30 penalty units or three months’ imprisonment.
The circumstances of offending in relation to Indictment No. N10610783
5Counsel for the prosecution tendered, initially, a document headed, 'Summary of Prosecution Opening for Plea' dated 30 January 2023. I set out the following important matters:
· On Saturday, 19 March 2022 at 11.30pm, you and your co-offender – your son Matthew Kemp – attended at a residence in Port Welshpool Road, Port Welshpool, the home address of the complainants Mark McDonald ('McDonald'), Amanda Emery ('Emery') and their eight-year-old son.
· You parked out the front of the address in a 1997 silver Subaru Impreza, registration 00B 407 and also in the vehicle was an associate, Erin Richmond. Both you and the co-offender exited the vehicle, then forced open a locked shed door, which was the doorway into the property. Inside, the shed at the time was the complainant, McDonald, who heard and observed both you and the co-offender enter the shed area, after which he made his way towards the front door of the house.
· Both you and your co-offender then walked through an open side area of the shed and walked towards the front door of the house.
· In the front yard of the premises, Emery confronted you and your co-offender, and you lifted your right hand up behind your head in a fist and the complainant, Emery, thought you were going to punch her. As both you and your co-offender made your way towards the front door of the house, you were yelling, 'give me your drugs and money.'
· You then stood at the front of the premises and attempted to push your way in. The front door was wooden with a very large see-through glass panel. The complainant, McDonald, was standing inside the front door pushing it back against you. At that time, the co-offender – your son Matthew Kemp – stood behind you. Also inside the house at that time was the complainants’ eight-year-old son.
· When you were trying to push your way through the front door being held closed by McDonald, you screamed, “[g]ive me your drugs and your money”.
· In order to get rid of you and the co-offender, McDonald said:
“Give me 10 minutes and I’ll go and get them for you, I don’t have any drugs here”
You then yelled out:
“You’ve got 10 minutes cunt, get the drugs and the money or you’re fucking dead”.
(My emphasis.)
· When this was taking place, Emery walked out to the front of the premises and observed the silver Subaru vehicle parked on the opposite side of the road and approached the vehicle, and observed Richmond lying on the back seat. Matthew Kemp, your co-offender, then walked out the front of the premises and yelled at Emery to get away from the vehicle. Emery could still hear you banging on the front door of the house and yelling to the complainant, McDonald.
· Both you and the co-offender then left the premises for a short time, after which McDonald and Emery secured the shed door by using a chain and padlock, and some logs were put up against it, and then went back into the house.
· Both you and your co-offender, and Richmond, then drove into Port Welshpool and a short time later you and your co-offender again attended the property and tried to force the gate open, and were unable to do that at this time.
· The complainants then heard banging and smashing out the front of the property, before you, your co-offender and Richmond left the area.
· On Thursday, 24 March 2022, you were arrested and conveyed to the Wonthaggi Police Station for a video-recorded interview. You were then charged and released on bail to appear on 8 September 2022.
· When questioned by the police, you stated that you did not know McDonald or Emery personally, but had driven past the house plenty of times and:
“I was told who he (MCDONALD) was and what he’s about”.
· You denied yourself or your co-offender – your son – made any threats to the complainants, but did admit that you and your son “probably did go there”, (that is the complainants’ house). Furthermore, the door was pushed open, not forced open.
· You also stated at that interview, that you walked up to the complainant, McDonald, and said to him that there was a message from somebody to this effect:
“And you owe $3,000 and you’ve got to pay it otherwise it’s gunna be repercussions, I’ve been told. I’m just a messenger”.
· You also stated that when the complainant informed you that he had children in the house, you replied that you were not coming in the house, you were just letting him – that is McDonald – know that he owes $3,000 and they wanted you to ask him to pay it.
· You further stated that, as far as you were concerned you did nothing wrong because you were just a messenger, and passing on a message to the complainant McDonald. In particular, you denied making any kinds of threats to the complainants, only in passing a message on. When asked why you were passing the message on, you stated that the person who had asked you to do it had looked after you before and had leant you money when you were “down and out and broke”.
6That indictment also involved Uplifted Charge 4 – that is entering a private place without express or implied authority from the occupier without any lawful excuse – the facts of which are set out in the later material.
7In relation to the offending relevant to Indictment No. N10606516, counsel for the prosecution also tendered a further document headed “Summary of Prosecution Opening for Plea”, again dated 30 January 2023 (exhibit 6). Again, I note the following important matters:
· On Thursday, 24 March 2022, police attended at the address on James Road, Hedley, to execute a search warrant in relation to an alleged offence of aggravated burglary. The occupier of that address is the complainant in that matter, Clancee Fearnley (“Fearnley”). As a result of the aggravated burglary investigation, you, as already noted, were charged with make threat to kill (on Indictment No. N10610783) and the related summary charge of trespass.
· On 24 March 2022, you were released on bail until 8 September 2022, and your co-offender, Matthew Kemp, was charged with trespass.
· During the execution of the search warrant, three firearms were located and seized and your son, the co-offender Matthew Kemp, was charged with the possession of those firearms and Fearnley made a statement to police in relation to this offending.
· On Saturday, 26 March 2022, you attempted to ring Fearnley on two occasions and she, seeing the phone calls, chose not to answer. You then sent Fearnley the following SMS test message:
“Hey Clancee, I’m coming around tonight to pick up some of Matt’s stuff”.
· The complainant then rang you and a phone conversation ensued. During this phone call, you were informed that no one was home and that you would have to wait outside.
· You then told Fearnley that it was your “fault about Matt” and asked Fearnley if she would make a statement saying that the firearms located during the search warrant “weren’t Matt’s guns” and that she did not “know who the (sic) belong to”.
· During the same conversation, you also accused Fearnley of having planted “the guns in Matt’s ute”.
· At about 7.50pm, you arrived at Fearnley’s home address and was accompanied by Jesse Cameron and Luke Kemp. Also present at the address was Fearnley’s associate, Emma Baltruschaitis.
· Upon existing the vehicle, you began telling Fearnley how unfair it was:
“that Matt would be spending up to 4 years in gaol for the guns, and that you” (FEARNLEY) “should save his arse”.
· There was some discussion between you and Fearnley in relation to the aggravated burglary incident and the seized firearms. You then said to Fearnley:
“you just need to write a statement and say they’re not Matt’s guns and that you don’t know whose they are”.
· In her statement, Fearnley recalled that:
“It wasn’t intimidating towards me, but more him being desperate to help his son”.
· You then took some items from the shed and you, Jesse Cameron and Luke Kemp left the premises a short time later, when Baltruschaitis said that she had called police.
· On Sunday, 27 March 2002, at about 3.00pm, Baltruschaitis informed Fearnley that, during a phone conversation Baltruschaitis had with you, you had told her that you would teach Fearnley a lesson. In particular, Baltruschaitis informed Fearnley that you stated the following during the phone call:
“Fuck Clancee- I’m gonna go on the property whether she likes it or not. I’m gonna sort her out and teach her a lesson for snitching to the police”.
· When Fearnley finally found out about your threat, she was terrified that you would come back to the house and follow through on the threat.
8As already recorded, on 24 March 2022, you had been released on bail in relation to the charges make threat to kill and trespass. On 28 March 2022, you were arrested by police in relation to attempting to pervert the course of justice. During the arrest, there was located in your small snap-lock bag, a white crystalised substance – methylamphetamine (Charge 2 on Indictment No. N10606416). Accordingly, when you attempted to pervert the course of justice on 27 March 2022 and possessed a drug of dependence on 28 March 2022, you had been on bail since 24 March 2022.
9On 28 March 2022, you were conveyed to Wonthaggi Police Station for a video-recorded interview, during which you made partial admissions, after which you were then charged and remanded in custody. I was informed at the plea hearing on 31 January 2023, that you had served 309 days of pre-sentence detention for these charges and for the charges on Indictment No. N10606416.
Your criminal record
10Counsel for the prosecution tendered your criminal record dated 19 January 2023 (see exhibit 5). Your record commences on 13 February 1986, when, at the Murrumbeena Magistrates’ Court, you were found guilty of littering, theft of a motor vehicle, offensive behaviour, unlicensed driving and careless driving, and were sentenced to a serious of fines and disqualification of licence. Thereafter, the following has occurred:
(a) On 17 August 1987, at the Moe Magistrates’ Court, you were convicted of theft of a motor vehicle and failing to appear on bail, and was ultimately fined $250;
(b) On 5 July 1990, at Murrumbeena Magistrates’ Court, you were convicted of offensive behaviour, assaulting police, unlawful assault and being drunk in a public place, and again fined various amounts for each of these offences;
(c) On 7 July 2000, at the Dandenong Magistrates’ Court, you were convicted of recklessly causing injury and again fined $750;
(d) On 6 April 2001, at the Dandenong Magistrates’ Court, you were found guilty of a drink driving offence, using an unregistered motor vehicle, driving at night with ineffective headlights and failing to notify change of residential address, and placed on a community-based order for six months, with the Order commencing on 6 April 2001, with special conditions of performing seventy-five hours of unpaid community work over six months and having your licence cancelled and disqualified for twenty-six months;
(e) On 9 October 2001, at the Dandenong Magistrates’ Court, you were convicted of failing to comply with the community-based order made on 6 April 2001, fined $400 and was re-sentenced in relation to the earlier offences by way of various fines;
(f) On 4 April 2002, at the Dandenong Magistrates’ Court, you were convicted of unlawful assault and fined $500;
(g) On 31 July 2002, at the Dandenong Magistrates’ Court, you were convicted of theft and fined $500;
(h) On 27 October 2011, at the Korumburra Magistrates’ Court, you were convicted of recklessly causing injury and was sentenced to a community-based order for twelve months, such order commencing on 27 October 2011, with conditions of performing 150 hours of unpaid community work, to undergo assessment and treatment for alcohol and drug addiction, and to submit to psychological and psychiatric assessment and treatment;
(i) On 7 February 2014, at the Wonthaggi Magistrates’ Court, it was proven that you contravened the community-based order made on 27 October 2011 and, at that time, you were sentenced to a Community Correction Order for twelve months, commencing on 7 February 2014, with special conditions of supervision, treatment and rehabilitation in relation to drugs, mental health and behaviour programs;
(j) On 8 September 2014, at the Latrobe Valley Magistrates’ Court, it was proven that you contravened the Community Correction Order made on 7 February 2014 and it was ordered that you serve an aggregate of three months’ imprisonment, with it being noted that you had six days pre-sentence detention, which was declared;
Also on 8 September 2014, you were convicted of contravening a Family Violence Intervention Order and contravening a conduct condition of bail, and ultimately sentenced to an aggregate six months’ imprisonment, which, pursuant to the then s27 of the Sentencing Act 1991, was partially suspended, with you being required to serve four months, with the operational period being twelve months;
(k) On 11 January 2016, at the Moorabbin Magistrates’ Court, it was proven that you had contravened the suspended sentence order and you were convicted and sentenced to a Community Correction Order for eighteen months, with special conditions involving supervision, treatment and rehabilitation in relation to drugs and mental health, and offending behaviour. It was noted that, at that time, you had been recently diagnosed with paranoid schizophrenia and was under medical supervision;
(l) On 6 March 2017, at the Moorabbin Magistrates’ Court, it was found proven that you contravened the Community Correction Order made on 11 January 2016, and you were also convicted for the possession of cannabis and fined an aggregate of $400;
(m) On 22 May 2017, at the Wonthaggi Magistrates’ Court, it was found proven that you had contravened the Community Correction Order made on 6 March 2017. At that time, the original order was varied to a period of twenty-four months, with similar conditions as earlier;
(n) On 31 July 2020, at the Latrobe Valley Magistrates’ Court, you were convicted of failing to stop your vehicle on police direction, unlicensed driving, using an unregistered vehicle on a highway, contravening a conduct condition on bail, failing to have proper control of the vehicle and failing an oral fluid test within three hours of driving. You were sentenced to an aggregate of ninety-two days’ imprisonment, with time being held in custody being ninety-two days reckoned as a period of imprisonment already served under the sentence. You were also fined a further $800 in respect of some of the offending;
(o) On 10 December 2020, you were convicted of being a prohibited person possessing a firearm. You were convicted and sentenced to a Community Correction Order for three months, with special conditions that you perform unpaid community work of twenty-four hours over that period. Again, it was noted that you are schizophrenic and struggle with concentration;
(p) On 6 May 2021, at the Korumburra Magistrates’ Court, you contravened the Community Correction Order made on 10 December 2020 and, with conviction, you were fined an aggregate of $500;
(q) On 12 November 2021, at the Latrobe Valley Magistrates’ Court, you were convicted of unlicensed driving, failing to stop your vehicle on police direction and recklessly exposing an emergency worker to risk by driving, for which you were convicted and sentenced to a further Community Correction Order for twelve months, which contained special conditions of supervision, treatment and rehabilitation in respect to drugs and mental health, together with judicial monitoring.
Your personal circumstances and background
11Your counsel tendered the following material:
(a) Defence Outline of Submissions, dated 25 January 2022 (scil 2023) (exhibit “D”);
(b) Report of consultant psychiatrist, Dr Hemlata Ranga, dated 14 June 2021 (see exhibit “E”).
12Partly based on some of the documents which were tendered on your behalf and partly based on various submissions made to me by your counsel, I note the following:
· You were born in October 1968 and are currently aged fifty-four years. At the time of the subject offending, you were aged fifty-three.
· You were born in Korumburra in country Victoria but, as a child, you and your family moved to Melbourne, staying for several years before returning back to live in Korumburra.
· Your mother, Jennifer, who is seventy-three, is now retired and was formerly a nurse, and your father, who is seventy-five, is now retired, was formerly an asphalter. You are the oldest of two, with a younger sister, Tracy, aged fifty-two, who is a nurse and lives in Queensland.
· Your parents separated when you were about eleven, and following the split, you and your sister were also separated, with you remaining with your father, while your sister stayed with your mother.
· You found the family unit being divided very difficult and it led to chronic feelings of “abandonment and rejection”, particularly as your mother and sister eventually relocated to Traralgon.
· In particular, you instructed your counsel that you were exposed to, and experienced, family violence at the hands of your father. You describe your parents’ relationship as characterised by family violence. In particular, you instructed that your father’s behaviour was the reason for your family needing to move so frequently and was the primary cause of your parents’ separation.
· You described your childhood as being unhappy and unstable.
· You have kept in contact with your parents and they are aware that you are currently in custody and have maintained contact with both your mother and father during your time on remand.
· Prior to being remanded, you were living with your son, a co-offender in some of the offending, and your father, in Korumburra.
· You instructed your counsel that your father has been hospitalised approximately six times over the last few months and you are increasingly concerned about being away from him, given your father’s health and age issues.
· It is anticipated that you will return to live with your father and son, Luke, upon release.
· In relation to your education, you attended a number of schools and obtained a very limited level of education, due to family’s instability and regular relocating. You left the school system in Year 8 and this led to a degree of social disadvantage. Your education ceased at that time, largely due to the frequency of changing schools, which led to you struggling academically.
· For the first twelve months after leaving school, you were unsure what to do and did not work, but eventually obtained employment with a printing company, then worked in a variety of jobs up until your twenties, when you commenced concreting, which you worked in for about twelve years. You also worked as a forklift driver for about eight to nine years. As a result of this employment, you obtained a number of accreditations, certificates and tickets.
· You last worked around nine years ago and since that time you have been in receipt of the Disability Support Pension.
· You commenced a relationship with Natasha when you were aged eighteen, but separated after you relocated to Melbourne. Together, you had a daughter, Ally, who died at the age of eighteen, in 2009.
· You then commenced a relationship in Melbourne with Cecilia and together you had two sons:
– Luke, aged twenty-eight, who has schizophrenia and is currently unemployed
ꟷ Matthew, aged twenty-five, who is the co-offender in some of the subject offending.
You and Cecilia separated about twenty-two years ago.
· You moved back to Korumburra about twenty years’ ago and re-established a relationship with Natasha, and you were together for about fourteen years, separating about four to five years ago. You are currently single.
· In relation to your physical health, you have been receiving medical treatment while in custody and, prior to be remanded, for blood clots in your chest, and are currently prescribed blood thinners.
· As noted, your daughter, Ally, died at the age of eighteen in 2009, as a result of a car accident, with you being the driver of the vehicle. The loss of your daughter in the circumstances in which it occurred, had a significant impact on your mental health.
· Since then, you have made a number of attempts of self-harm, with a very serious attempt at suicide several years ago, after you had read the Coroner’s Report covering your daughter’s death.
· You do have a formal diagnosis of paranoid schizophrenia in relation to experiencing frequent depressive episodes. You were diagnosed with schizophrenia approximately nine years ago.
· Your decline in mental health and subsequent diagnosis made holding a job increasingly difficult, eventually leading to you ceasing employment. The additional financial stresses led to exacerbating your already poor mental health.
· You have required periods of involuntary treatment and you are ordinarily under the care of Latrobe Regional Health and have a regular general practitioner at the Korumburra Medical Centre.
· You have been cased managed for lengthy periods, with the longest period being between 2015 and 2018. You are treated on monthly depot antipsychotic medications, ordinarily Paliperidone and, orally, on Abilify. You instruct your counsel that you have maintained this treatment regime while in custody.
· Following the death of your daughter in 2009, your mental health has significantly worsened, primarily regarding your psychotic symptoms and mood, leading to you trying to hang yourself.
· Prior to your period on remand, you had been presenting to mental health services, often as a result of acute suicidal plans and incomplete suicidal attempts.
· You instruct that you have not been able to cope with life following the loss of your daughter and that, despite your medication regime, you continue to feel major depression and experience periods of suicidal ideation.
· You instruct that, prior to the death of your daughter, you had been functioning reasonably well, however, due to the grief and loneliness you have experienced (in addition to a relationship breakdown and financial stresses), your ability to cope has been significantly altered, compounded by your diagnosis of schizophrenia.
· You began drinking alcohol very heavily around eighteen and nineteen and that consumption was manageable for several years, however it has significantly worsened after your daughter’s death. You instruct that your drinking had reduced prior to your remand from daily to a few times per week.
· Following the death of your daughter, you turned to using methamphetamines and cannabis. While you had previously used both, it had only been on an infrequent basis and in a social context. Following your daughter’s death, you concede that your use of methamphetamine increased dramatically.
· You instruct you used methamphetamine to numb yourself, feel less depressed and forget, albeit temporarily, about losing your daughter. Furthermore, you comment that using methamphetamine gave you a false sense of motivation, during which times you were completely depleted.
· Prior to your remand, you were using, on instruction, several times per fortnight, according to the report from the psychiatrist.
· According to the report from the psychiatrist, you meet the criteria for Substance Use Disorder (alcohol, methamphetamine and cannabis).
The report of the psychiatrist, Dr Hemlata Ranga
13Dr Ranga, made a pre-sentence psychiatric assessment of you on 9 June 2021, as a result of solicitors then acting for you in relation to various driving offences. Although this assessment took place on 9 June 2021, more than two-and-a-half years ago, various matters can be gleaned from the assessment and the consequential opinions expressed by Dr Ranga.
14Dr Ranga obtained a history that you suffer from chronic paranoid schizophrenia and also have a history of illicit substance use. In particular, again, he confirms that you have been under the care of Latrobe Regional Health for the last several years prior to his assessment.
15Furthermore, he confirms that you have required involuntary treatment on some occasions and you are usually treated on depot antipsychotic medications, namely Paliperidone, which is administered monthly. You were also on the oral medication Abilify which, at that time, was around 20 milligrams a day.
16Dr Ranga noted that the clinical records which had been referred to him for the assessment would indicate that, over the last several years leading up to the assessment, you were presenting at mental health services very often due to acute suicidal plans and thoughts and, on some occasions, with incomplete suicidal attempts. Crisis Services have been involved and provided you support on many occasions over the last several years, which included the involvement of Ambulance Victoria and police.
17Dr Ranga noted that apparently you present with aggression and agitation when acutely unwell and, in particular, when under the effect of illicit drugs. You purportedly presented as extremely hostile and extremely challenging to manage your behaviour and agitation, despite high doses of sedating benzodiazepine and antipsychotic injectables.
18In his opinion at that time, Dr Ranga reported that you have continued to experience psychotic symptoms which are auditory and visual hallucinations, paranoia, disorganised behaviour and thoughts, and lack of insight. In addition, you also were presenting with significant depressive episodes and you have not found any medication regime of much help. You tend to use methamphetamine as a way to cope with your depression and grief.
19In particular, Dr Ranga stated that:
“32.Due to the severity of his mental health and frequent incidents in form of self-harm and suicide attempts as well as history of aggression when he is acutely psychotic I note that he will struggle with imprisonment and he won’t be able to receive his treatment in a therapeutic environment and timely manner. I also note that his risk of impulsive or planned self harm or suicide attempt or even completion of suicide will be high in prison.
33.He will continue to require psychiatric support either in form of case management or shared care between the local mental health services and his GP.
34. I note that he will benefit with referral to drug and alcohol counselling as well as ongoing engagement with the local area mental health service in conjunction with his GP to ensure that he continues to receive his antipsychotic depot medication, and engage in psychotherapy to address his unresolved grief, as well as undergo case management.
35. His illicit drug use is a significant factor which impacts on his offending behaviour. And his unstable mental state also impacts indirectly on his offending behaviour. Hence these two main interventions i.e. treatment of his mental state and addressing his drug and alcohol issues will assist in decreasing his risks of reoffending and increase his chances of rehabilitation.
36. I note that given his past history of inability to comply with legal orders he is likely to struggle with completing or complying with specific conditions on the CCO. He will find ‘community work’ onerous due to his mental state.
37. Respectfully, the court may direct him to attend mental health and drug and alcohol services for his treatment and also direct him to undergo random urine drug screen , and breath analysis, to monitor his drug use.”
(sic)
Matters put by your counsel in mitigation of sentence
20In relation to Charge 1 on Indictment N10610783 – that is involving a threat to kill – it was, so it was submitted, a serious example of this offence, although your counsel points out, of course, that nothing came of the threat, and when the threat was made, your yelling out and emotions were high on your part.
21In relation to Uplifted Charge 4, involving the trespass of the Port Welshpool Road premises, such trespass was for a limited time and there was no damage done to the property, although it was accepted that your yelling and banging on the door would have been particularly frightening to the inhabitants of the premises.
22Your counsel submitted, correctly in my view, that the charge of attempting to pervert the course of justice is a serious offence and that general deterrence is an important sentencing consideration. Of course, circumstances vary as to the nature and extent of attempting to pervert the course of justice.
23Your counsel submitted that your offending was motivated by a misguided attempt to protect and assist your son. According to your counsel, you acknowledge the wrongfulness of your actions, but instruct that, at the time, you were unaware of how serious your actions were.
24Your counsel submitted that Fearnley, when first confronted by you, did not consider she was being threatened and considered the situation was more that you wished to protect your son. However, after the message had been passed on to her about your intentions, that caused her to contact police who, shortly after, arrested you and remanded you in prison.
25Your counsel conceded that an immediate period of imprisonment would have to be ordered in relation to that offending.
26In particular, your counsel submitted the following:
(a) Your plea of guilty
Consistent with counsel for the prosecution, your counsel submitted your plea of guilty was “at the earliest opportunity”. Furthermore, consistent with the Court of Appeal decision of Phillips v R ([2012] VSCA 140), the following matters should be taken into account when considering an appropriate discount for such plea:
(i)The utilitarian benefit of such a plea, which means that the Court was saved the time and cost of a trial and, in particular, a plea avoids the necessity for the complainants to give evidence in a trial;
(ii)That such a plea of guilty is demonstrative of remorse. Although Phillips establishes that it is up to the Court to assess whether such plea is demonstrative of remorse, I do accept that you have shown some remorse by such a plea;
(iii)Such a plea also demonstrates a willingness to facilitate the course of justice and acceptance of responsibility;
(iv)Given a plea of guilty entered during the COVID-19 Pandemic is worthy of greater weight in mitigation than a plea entered at a time when the community and courts are not affected by the effects of the pandemic. Reference was made to Worboyes v R [2021] VSCA 169, wherein the Court of Appeal stated that such a plea in those circumstances should attract and “actual and palpable amelioration of sentence”.
I accept such submissions in relation to the plea;
(b) Onerous circumstances in prison
Your counsel submitted that your time in custody has been more onerous due to the COVID-19 Pandemic. In general, I accept such submission.
Although such conditions in prison may not be as onerous as those in the past, I do consider your experience in custody has been subject to increased lockdowns, quarantine periods, and restrictions on prisoner access, both to family and friends, and also to various programs. I consider that some allowance should be made for such situation, bearing in mind that these conditions will also, presumably, continue for some time at some level into the future;
(c) Prospects for rehabilitation
It was submitted that you have no outstanding police matters and that the Office of Corrections have confirmed they are waiting the outcome of these current proceedings before initiating contravention proceedings for the Community Correction Order imposed on 12 November 2021. It was submitted that you have family support both from your parents and accommodation from your father upon release. During your period of imprisonment, it was submitted that you have “detoxed”. You have instructed your counsel that you are motivated to contain abstinence once detoxicated;
(d) Based on the report of Dr Ranga, principles 5 and 6 set out in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 are enlivened. In particular, given your mental health background, it may mean your given sentence may weigh more heavily on you than it would on a person in normal health and, furthermore, that there is a serious risk that imprisonment may have a significant adverse effect on your mental health. This may be manifested by, according to Dr Ranga, self-harm, suicide attempt or even completion of a suicide.
(e) It was ultimately submitted that an appropriate sentencing disposition with a straight sentence consisting of time served would be appropriate in all of the circumstances.
The position of the Prosecution
27Counsel for the prosecution made the following submissions:
(a) That there is really no evidence of remorse, given that in your record of interview, you made plain that you could not “see what [you’ve] done wrong”, although counsel accepted there is some limited remorse in relation to the offence of threatening to kill;
(b) It was accepted that the plea was at an early stage;
(c) It was accepted that Principles 5 and 6 of Verdins are applicable in all the circumstances.
28It was accepted that the perverting the course of justice charge was “not a serious example” of such offence. However, the threat to kill was not a low-level threat and you were on a Community Correction Order at the time that offending took place.
29Counsel for the prosecution submitted that general and specific deterrence, denunciation and community protection were relevant sentencing considerations.
Conclusion
30On Indictment No. 10610783, you have been charged with making a threat to kill McDonald when standing outside the premises occupied by McDonald and Emery on 19 March 2022. Such offence is a serious offence, bearing in mind that the maximum penalty is ten years’ imprisonment.
31Seemingly, such a threat was made when you were accompanying your son to those premises to recover drugs and/or money said to be owed by McDonald. It was unclear who the debt was particularly owed to, given that you were brought along as a result of your son telling you about the debt.
32Of course, threats to kill can be said in a wide range of circumstances – in a comical way up to being said in a very “deadly” way. Notwithstanding your assertions that you were just the messenger, the material before me does suggest that the purpose of making the threat was to frighten McDonald in order to recover the debt and/or drugs.
33Of course, at the time of making the threat you were attempting to gain entry, but was restricted by a large wooden door on which McDonald was pushing against to prevent such entry. On that day, you never succeeded in entering the premises.
34I do note that Dr Ranga considered that, due to the severity of your mental health and in particular your chronic paranoid schizophrenia, there have been various instances of self-harm, suicide attempts and frequent bouts of aggression when you are acutely psychotic. It is unclear what state you were in at that time of making the threat to kill. Of course, after the that was made, there was no attempt by you to carry through with a threat at that time, or any time after the threat was made.
35Also, it must also be borne in mind that you made such threat during the currency of a Community Correction Order, which you had entered into on 12 November 2021.
36Uplifted Charge 4 was heard at the same time as the charge on Indictment No. N10610783. Uplifted Charge 4 involved you entering the premises at Port Welshpool without express or implied authority from the occupier or with any lawful excuse. It was during that time that you uttered the threat to kill.
37Again, although seemingly there was little damage done, if any, the whole experience would have been frightening for the occupants of the premises, given your yelling and banging on the door seeking to obtain entry. I do note that the offending is a summary offence and only attracts a maximum penalty of three months’ imprisonment.
38In relation to Indictment No. N10606416 and, in particular, Charge 1, which involves you attempt to pervert the course of justice – such offence is also a serious offence, bearing in mind the maximum penalty is twenty-five years. Of course, attempts to pervert the course of justice covers a wide range of circumstances.
39Fairly, counsel for the prosecution described the circumstances giving rise to this charge as “not a serious example of the offence”. However, it must be remembered that the person you approached to lie about who owned the various weapons found at your son’s premises initially considered that such a request was not made in an intimidating way but, rather, was a father trying to protect his son from being sent to jail for a further weapons’ offence. However, on the material before me, it would appear that the complainant in this matter, Fearnley, was told by her friend Baltruschaitis, that she was told by you that you were going to teach Fearnley a lesson. At that stage, Fearnley became “terrified”.
40The second charge on Indictment No. N10606416 is related to a drug of dependence, namely methylamphetamine. I accept that such possession was of a small quantity and for personal use. I intend to fine you in relation to that offence.
41Also in relation to that Indictment, there was Uplifted Charge 4, involving you committing an indictable offence, that is, the attempt to pervert the course of justice while on bail.
42In this respect, it must be borne in mind that you had been released on bail on 24 March 2022 in relation to the charges of make threat to kill and trespass and was still subject to this bail undertaking when you committed the offence of attempting to pervert the course of justice on 27 March 2022, and possessing a drug of dependence on 28 March 2022. These further offences gave rise to further charges and being remanded in custody.
43As I have pointed out during the course of these reasons, I do accept that the following matters are relevant to mitigation of your sentence:
(a) Your early plea, which does have utilitarian value and obviated the need for the complainants to give evidence at any trial. Furthermore, given that your plea of guilty was during the COVID-19 pandemic, you also attracted further “actual and palpable amelioration of sentence” as a result of the decision of Worboyes (op cit);
(b) That you had shown some remorse for your offending and this must be seen in the context of you believing that you did nothing wrong by attending the premises. I give some weight to remorse, but it is not an overwhelming factor;
(c) Your period of imprisonment has been, and will be, although arguably to a lesser extent, more difficult than normal because of COVID-19 restrictions which impact on contact with family and/or friends and, indeed, access to various courses in the prison;
(d) Limbs 5 and 6 of Verdins (op cit) are enlivened, based on the evidence of the psychiatrist. In particular, any period of imprisonment would be far harder for you because of your mental condition, than for a prisoner who has no such mental condition. Again, taking account of the opinion of the psychiatrist, this is a significant factor, given the unpredictability of your moods and your aggression as a result of your schizophrenic condition. Furthermore, there is a real risk that your condition will deteriorate as a result of being incarcerated;
(e) In this respect, I clearly accept that you have been diagnosed with paranoid schizophrenia, seemingly following the tragic death of your daughter in a motor car accident. Although you did have some mental health problems prior to that time, that event seems to have exacerbated the condition and, from that point, you have had active treatment for ongoing significant psychological problems. Fortunately, you have had the assistance of your son to look after you, although you have been unable to work for a number of years now because of that condition.
44In relation to the threat to kill offence and perverting the course of justice offence, I am of the view that you must be imprisoned, with considerations of general deterrence, specific deterrence and, indeed, denunciation, being important in determining an appropriate sentence.
45Please be upstanding:
(a) In relation to Charge 1 on Indictment No. N10610783, you are convicted and sentenced to a period of imprisonment of eight months. This is the base sentence;
(b) In relation to Uplifted Charge 4, you are convicted and sentence to a period of imprisonment of two months;
(c) In relation to Charge 1 on Indictment No. N10606416, you are convicted and sentenced to a period of imprisonment of six months;
(d) In relation to Charge 2 on Indictment No. N10606416, you are convicted and sentenced to a fine of $400;
(e) In relation to Uplifted Charge 4, you are convicted and sentenced to a period of imprisonment of one month to be served concurrently with other sentences ordered this day;
(f) The Court directs that one month of the sentence imposed in relation to Uplifted Charge 4, heard with Indictment No. N10610783 and four months of the sentence imposed in relation to Charge 1 on Indictment No. N10616416, are to be served cumulatively upon each other and the sentence in relation to Charge 1 on Indictment No. N10610783;
(g) The total effective sentence is thirteen months’ imprisonment;
(h) Further, I declare that you have been in custody in respect of these offences for 336 days and that such a number of days shall be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively;
(i) Pursuant to s6AAA of the Sentencing Act 1991, I declare that, save for your pleas of guilty in relation to the indictable offences, I would have sentenced you to:
(i)in relation to the charge of make threat to kill, I would have sentenced you to fifteen months’ imprisonment; and
(ii)in relation to the charge of attempting to pervert the course of justice, I would have sentenced you to a period of ten months’ imprisonment.
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