Director of Public Prosecutions v Keyte

[2024] VCC 901

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-01767

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK DAVID KEYTE

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2024
DATE OF SENTENCE:	18 June 20204
CASE MAY BE CITED AS:	DPP v Keyte
MEDIUM NEUTRAL CITATION:	[2024] VCC 901

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing

Catchwords:              Persistent contravention of Family Violence Safety Notice; Attempt to pervert the course of justice

Legislation Cited:      

Cases Cited:Carter v The Queen [2020] VSCA 156; O'Neal v The King [2024] VSCA 129; Zakkour  v The Queen [2020] VSCA 72; DPP v Oksuz [2015] VSCA 316; Dragovic v The King [2024] VSCA 95; DPP v Qayyum [2024] VCC 626; DPP v Dixon [2024] VCC 113; Visa cancellation (character grounds)

Sentence:                  Convicted and sentenced to a total effective sentence of 16 months, and a fine of $2,500

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr W. Barker	Leanne Warren & Associates

HER HONOUR:

1Mark David Keyte, you have pleaded guilty to two charges of persistent contravention of a family violence safety notice and one charge of attempting to pervert the course of justice.  This offending occurred in 2022.

Summary of Charges

2At the time of the offending you were 38 years old.  In early 2022 you were in a relationship with Ms Lockett, who was then 20 years old.  On 25 May 2022 Ms Lockett spoke to the police making allegations against you of violent behaviour.  This conversation with police was recorded, and as digitally recorded evidence in chief (DREC) it was evidence which could be used in court against you.

3Two days later, on 27 May 2022 charges relating to Ms Lockett’s allegations were filed, and an interim family violence intervention order (the Order) was made at the Ballarat Magistrates’ Court where Ms Lockett was the protected person.  The conditions of the Order included that you were prohibited you from having contact with her or causing any other person to have contact with her.

4You were released on bail on 27 May 2022.

Charge 1

5Following the making of the Order you contacted Ms Lockett by phone on 10 June, 16 June and 7 July 2022.  It is not stated what happened or what was said in those calls. Those contacts on those three days amount to Charge 1.

Charge 2, attempting to pervert the course of justice

6Acting on instructions from you, Ms Lockett spoke to the police on several occasions and acting on the instructions from you she made three statements of non-complaint to the police.  On 26 June 2022 you asked an associate to get you Ms Lockett’s mobile phone number, so that she could retract her statement.  On 13 July 2022 you sent her an SMS stating that you had a meeting with your lawyer and she needed to get her letter signed by a Justice of the Peace.  Implicit within that message is that you had had contact with her, either directly or indirectly, which led to the handwritten letter being prepared.

7At around noon on 22 July 2022 Ms Lockett attended the Ballarat police station, where she spoke to Detective Thorne.  She told him that she wanted to retract what she had said in the digitally recorded evidence in chief and to make a statement of no complaint.  She had a handwritten letter with her, and she told Detective Thorne that she wanted her new statement to be in the terms of the letter.  That letter included the following representations, which were not true:

(a)   She said she had been trying to retract her digitally recorded evidence in chief but had been “stuffed around … trying to do the right thing”;

(b)   It said that she had been experiencing “drug psychosis” and had suffered the injuries when she fell downstairs and ran through bushes;

(c)   It said that she was under the influence of a cocktail of drugs at the time of making her digitally recorded evidence in chief and she had not slept; and

(d)   She was ashamed that she had made a false statement which was not factual.

8Detective Thorne typed up a statement, consistent with the letter which Ms Lockett signed at 12.50 pm that day. The statement prepared and signed still contained references to her having made allegations about having been assaulted by you, although she stated that that was not true.

9At 1.07 and 1.11 pm that day you sent messages to Ms Lockett which read

U neva do what is asked of ..u just do what Eva the fuck you want ..

And the next message was

The one u wrote nothing els will do ..

10Ms Lockett replied to you “ok”.

11At 1.15 pm Ms Lockett called Detective Thorne and said that she wanted to change the statement which she had signed 25 minutes before.  She went back to the police station.  Whilst she was waiting to see the police officer again she messaged you explaining that she could not answer your calls as she was in the waiting room.  She signed an amended version of the statement at 2.00 pm.  It again stated that she had made a false allegation of assault against you and attributed her injuries to running through the bush whilst drug affected. 

12You sent a message to her at 2.04 pm asking how long it would be before she was done, and she responded with a photo showing that she was still at the station and with a message saying it would be five more minutes.

13At 3.30 pm that same day, 22 July 2022, Ms Lockett again called Detective Thorne and said she wanted to change her statement again.  He told her that this was not possible that day and made an appointment for her to attend the station on 25 July 2022.  She did not attend that appointment. 

14She did attend the police station again on 4 August 2022 and she signed a further statement in which she said that she had not been assaulted by you and had been under the influence of drugs.   

15That conduct by you amounts to Charge 2, attempting to pervert the course of justice.

Charge 3

16Charge 3 is a further persistent breach of the family violence intervention order.  You further breached that Order by contacting Ms Lockett on 21 and 22 July, and then again on 6 August 2022.  Again, it is not stated by the prosecution what happened or was said in the contacts on 21 July and 6 August 2022.  The contacts on 22 July are those to which I have referred under Charge 2.  Charge 2 addresses the content of the contacts, Charge 3 relates to having made the contacts in breach of the interim family violence intervention order.[1]

[1]see Carter v The Queen [2020] VSCA 156, [72]

17On 8 August 2022 the Order was varied to allow you to have contact with Ms Lockett. 

Police interview

18You were interviewed by police on 18 August 2022 for a number of offences, including breaching the interim family violence intervention order.  You said you did not know if there had been any communication with Ms Lockett in breach of the Order, and that your messenger app had been hacked.  You claimed that you did not know what the messages from Ms Lockett to you on 22 July had been about, and also that messages between you had been about going to Cash Converters.  You denied writing the 22 July 2022 letter, and you said that you did not coerce Ms Lockett into retracting her digitally recorded evidence in chief. 

Personal Circumstances

19You were born in New Zealand, and you came to live in Australia, with your family when you were 4 years old.  You are still a New Zealand citizen.  You have had a good relationship with your parents and your younger sister, but you are not close with your elder two half-siblings.

20Your father was a professional polo player and umpire.  Your family own and run their own polo club. Your mother worked in administration for that business. Because of your father’s profession your family travelled and moved a lot when you were growing up.  This impacted the schools you attended and it was disruptive of your primary school education and hampered your ability to fit in and form friendships. 

21When you started secondary school you were in a boarding school here in Ballarat.  You report that this was a difficult time, with issues of physical abuse by a teacher.  When you reported this, you felt dismissed, and that you were not believed because of the perception of you as a badly behaved young person.  You were expelled in Year 8, which you attribute to persistently speaking out about the abuse.

22You report that you were diagnosed at age 10 with ADHD, and that you suffer from dyslexia. You were prescribed medication for the ADHD with some benefit and you continued to take that medication until you were around 21. These conditions affected your ability to pay attention and to learn.  In Year 9 and Year 10 your family attempted to address these difficulties by home-schooling you.  You did not continue your education after Year 10.  The focus of you and your family was polo.  You learned to ride at a very early age and played polo from the age of 5.  You learned to train horses. 

23At age 16, after you had finished your schooling, you went to live in Queensland, where you worked on a cattle station for two years.  You have described this as the first period of stability in your life, you enjoyed the independence of being out of your parents’ home.  At 18 you returned to live with your family and took up professional polo, which looked to be a promising career for you. It was around that time that you commenced your relationship with your former partner, who is the mother of your two children. Unfortunately for you, you suffered a knee injury when you were 20, with the result that you were not able to continue to play polo professionally.

24The recovery process from your knee injury was long, requiring multiple surgeries.  You were at a loose end, as you were not able to do the physical work involved with horses. You began to associate with others who were not working, and started to use illicit drugs with that crowd.  In 2005 you were before this court on a charge of intentionally causing injury, and you received a fine and bond.  You were at that time 21 years old.

25At age 23 you returned to work, first in concreting for two years and then working for your family at the polo club.  That was seasonal work, and you would return to concreting when you were not otherwise employed.  You have also worked as a carpentry labourer, and in a 'fly in fly out' position on an oil rig.

26You have two children who are now seven and nine years of age.  The history I have been given about your relationship with their mother has been minimal, but you report that the relationship deteriorated after the children were born, and when you found it difficult to get stable employment.  You also report that you committed domestic violence offences against your then partner when you learned that she had been unfaithful to you. I note that you were before the court on charges of assault, intentionally destroying property and threatening to inflict serious injury in March 2020, for that offending you ultimately received a sentence of 42 days' imprisonment to be followed by a CCO.  You reported to Mr Campbell, the psychologist who assessed you for the plea hearing:

following this he and his partner separated and he retained custody of their children to provide them with a sense of stability. Mr Keyte stated he had struggled with feeling overwhelmed and experiencing feelings of loneliness following the deterioration of his relationship which led him to commencing and maintaining a new relationship despite developing an awareness of significant issues within that relationship.  [8]

27Your children were living with you until shortly before this offending.  I was told they had been removed from your care due to them being in the home when you committed family violence.  You say you were struggling with this loss at the time of these offences and using substances to ameliorate your emotional distress.  Since being remanded you have had weekly contact with your children.  Your family remains supportive of you.

28You report commencing a relationship with Ms Lockett around six months before this offending.  You say that she was also abusing alcohol and drugs, you both were during this time.  It was after an assault upon her in May 2022 that the interim family violence intervention order was imposed, and your children were removed from your care.  This led to you further abusing drugs, for the months prior to your arrest in August 2022.

29I was told that your plan, upon your release, is to return to work with your family at the polo club.

30You have been on remand since your arrest on 18 August 2022.  Whilst on remand you have been mainly at Marngoneet, where you have done a number of drug and vocational courses.   I was provided with certificates of completion for seven different alcohol and drug related programs, completed in late 2022 and early 2023, as well as personal development programs in November and December 2022.  You have also taken part in positive parenting seminars, and one vocational course.

Drugs and Alcohol

31You report a family history of problematic alcohol use and told Mr Campbell that you consider alcohol to be the primary contributor to the issues you have experienced throughout your adulthood.  You would arrive at work hungover, and it affected your relationships.  You report that prior to the breakdown of the relationship with the mother of your children you had not abused drugs or alcohol for eight years.  When you did relapse, you not only drank too much but you also used illicit drugs again.

32You had commenced using illicit drugs – cannabis, amphetamine, and MDMA –  when you were in recovery for your knee injury.  You report that you were binge drinking and using drugs most weekends, for years.  You say that you were introduced to methylamphetamine by your manger in your job on the rig, when you were 26.  Your abuse of that drug escalated, and you were a daily user for some years.  You report that you managed to reduce your use of illicit substances, but continued to use them for years, without your partner being aware of this. 

33After that relationship ended you continued to abuse alcohol and illicit drugs, and when you lost the custody of your children this escalated significantly.  In your relationship with Ms Lockett, you both abused drugs.

34You say that part of the reason for your abuse of drugs and alcohol was an effort to deal with the impact of the unresolved issues from the abuse you suffered at school.

Mental Health

35I have referred already to some of the issues which afflicted your mental health, including the abuse and ADHD.  As I have noted earlier you were taking prescription medication for the ADHD until you were 21. You told Mr Campbell that you ceased to take that medication in the context of increasing abuse of illicit drugs.  More recently, you report, you have been prescribed medication to manage the ADHD, and also symptoms of depression and anxiety, with good effect.

36Mr Campell considered that your mental health issues were perpetuated by the past traumatic experiences, which had not been resolved in a healthy way, and your lack of coping strategies.  Rather than addressing the impact of these experiences you turned to drugs and alcohol. 

37Mr Campbell considered that you would continue to have these issues until you addressed your mental health with appropriate treatment.  He noted that you expressed a willingness and desire to engage in such treatment, and to learn better coping strategies.

Factors raised in mitigation

38The two most significant factors raised in mitigation on your plea were first, that you have pleaded guilty and secondly the impact of the risk or likelihood of deportation upon you.

Plea of Guilty

39As to the plea of guilty you indicated in February 2023 that you would plead guilty to the charges before me.  This offer was part of a larger offer involving a number of briefs of evidence against you and it was not accepted by the prosecution at that time.  In October 2023 these charges did resolve in the way previously offered, and so you are entitled to a discount on the basis that you agreed at an early stage to plead guilty to these charges.

40You are entitled to a discount in your sentence for the utilitarian value of the plea.  Your counsel submitted that this discount should be somewhat greater than usual, given that you indicated your willingness to plead guilty at a stage when the pandemic was still having an impact on the court lists.  I will give your plea of guilty moderately greater weight in mitigation for that reason.[2]

[2]O'Neal v The King [2024] VSCA 129

Deportation

41As I mentioned earlier, you are not an Australian citizen.  You have lived in Australia since you were four years old.  You have effectively no close supports or relationship with anybody in New Zealand.  Your parents, sister, and children all live here in Australia.

42If you are sentenced to a term of imprisonment which exceeds 12 months in aggregate the likelihood is that your visa will be cancelled.  You will then face the task of appealing that decision. 

43I accept that the real prospect of having your visa cancelled and being deported is a matter that weighs on your mind whilst you are serving sentence, making your time in custody more onerous.  Furthermore, I accept that if you were to be deported, this would be a significant extra punishment upon you, given your lack of connection to New Zealand, as opposed to here in Australia. 

44Thus, I will give the significant prospect of deportation real weight in mitigation.

Rehabilitation

45I accept that you have reasonable prospects for rehabilitation. 

46A hurdle which you will need to overcome is your drug abuse.  It is a positive thing that you have engaged with the programs whilst in custody, and that you are willing to engage with treatment.  The difficulty will be for you, upon your release, to continue that work and not fall back into drug use when faced with the stress and difficulties that present in life.

47You have a history of family violence, for past sentences and also you have forthcoming matters for which you will be appearing in the Ballarat Magistrates’ Court in July this year. 

48In view of your age, history of family violence, history of drug abuse and that you turned to drugs again, in your mid 30s when facing life’s difficulties, I consider the finding that your prospects of rehabilitation are reasonable is more apt than that they are good, as was submitted by your counsel.

Delay

49I accept that there has been some delay since you were charged for these offences in 2022, and today, and that all of the charges have been hanging over your head for some time, with the associated concerns about disposition and deportation.

Gravity of Offending

50Your counsel accepted that you made more than one communication with Ms Lockett over several weeks in order to persuade her to withdraw her allegations, but he submitted that whilst the offence is an inherently serious one your conduct did not involve threats to Ms Lockett or actual violence.

51The offence of attempting to pervert the course of justice carries a maximum penalty of 25 years' imprisonment.  The criminal justice system, whilst robust, must be protected from actions such as yours, where witnesses are coerced into withdrawing or changing their evidence from the truth to something that is intended to aid an accused person.  The Court of Appeal has said of this offence:

An attempt to pervert the course of justice is a substantive, and not an inchoate offence, notwithstanding the use of the term ‘attempt’. Self‑evidently, any conduct that meets this description must be viewed seriously and denounced appropriately.  [Carter v The Queen [2020] VSCA 156, [70] footnote omitted]

52Furthermore, Charge 2 occurred in the context of family violence committed against Ms Lockett.  You were persistent in your efforts to get her to change her evidence.  You were able to convince her to change her statement and attend the police station three times to do so, because of your relationship with her.  You coerced her into lying to the police, to protect you.  You were 18 years older than her.

53I accept that there are no aggravating factors such as violence or threats of violence.

54Charges 1 and 3 are low level instances of that offence.  As I have noted it has not been alleged what those contacts consisted of, under the heading of those charges.

Other Sentencing Principles

55Breaches of family violence intervention orders and accused people seeking to persuade witnesses to change their evidence are far from uncommon offences.  Sentences for such offences must reflect the need to deter others from such conduct.  Where, as in this case, the context of the offending is domestic violence, the need for general deterrence is increased.

56I also have regard to the need to denounce your conduct, and justly punish you.  Furthermore, specific deterrence carries some weight in the sentencing exercise.

Current Sentencing Practice

57I was referred by counsel to several cases:

(a)   Carter v R [2020] VSCA 156. The attempt to pervert the course of justice charge involved conduct which was more serious than yours, including threats of violence. Carter was able to rely on a number of mitigating factors including his pleas and his dysfunctional childhood. The sentence on that charge was two years, which the Court held on appeal to be within range. I note that in that judgment the Court referred to a number of comparable cases where sentences for a similar charge ranged between 3 and 18 months.

(b)   Another case was Zakkour  v The Queen [2020] VSCA 72. A sentence of 18 months was imposed on a charge of attempting to pervert the course of justice. That sentence was not part of the appeal and no information about what founded the offences was included in the judgment.

(c)   The third case was DPP v Oksuz [2015] VSCA 316. Whilst on remand for blackmail offending, Oksuz had prepared a statement exonerating himself, which was sent via another prisoner’s mail.  He asked others in the community to chase up the witness and pressure him to sign the statement. That offending occurred in the context of a co-offender having shot the victim.  The original sentence of six months was raised on the appeal to 4 years.

58I have also reviewed three other cases:

(a)   In Dragovic v The King [2024] VSCA 95 the Court of Appeal considered that a sentence of 14 months which had been imposed for a charge of attempting to pervert the course of justice. The accused had been on remand for family violence offences against the complainant. In a number of phone calls he begged her, he applied emotional blackmail and he made overt and implicit threats of violence in order to persuade her to retract the bulk of her allegations. The learned sentencing judge considered it was not at the serious end of the range for offending of this type, but it was still a serious offence. The Court of Appeal described the sentence for that charge, which was 14 months, as moderate, noting that it is an inherently serious offence.

(b)   In DPP v Qayyum [2024] VCC 626, the accused had put emotional pressure on his daughter to persuade her not to make a statement against him relating to domestic violence allegations by her mother. He received a sentence of two years.

(c)   Another sentence from this year was in DPP v Dixon [2024] VCC 113, in which a sentence of six months was imposed. The learned sentencing judge in that case described the plea to the charge as “very valuable”. He described it as an instance of the offence “of a very low order of culpability”.[3]

[3]DPP v Dixon [2024] VCC 113, [31]

59It is apparent that the sentences imposed for notionally similar offending vary quite widely.  It is well known, of course, that sentences imposed in other cases are not precedents, they do not set upper or lower limits on the sentences to be imposed in any given matter.  The sentences that I will impose are as follows.

Sentences

60On Charges 1 and 3 I impose an aggregate fine of $2,500 with conviction.

61On Charge 2 I sentence you to 16 months' imprisonment.

62The total effective term of imprisonment is 16 months.  Whilst I have the power to do so, I will not imposed a non-parole period, as it would be otiose in view of the time that you have already served in custody to date, which exceeds the 16 months' sentence.

63I declare that you have served 487 days of pre-sentence detention which amounts to 16 months from today.  That means that the balance of your pre-sentence detention will be available to you on the pending sentences.

64Pursuant to s6AAA of the Sentencing Act 1991, I state that if you had not pleaded guilty, I would have imposed a sentence of 2 years 3 months, with a non-parole period of 18 months.

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