Director of Public Prosecutions v Mackenzie

[2019] VCC 24

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00676

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE MACKENZIE

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 January 2019
CASE MAY BE CITED AS:	DPP v Mackenzie
MEDIUM NEUTRAL CITATION:	[2019] VCC 24

Subject:             CRIMINAL LAW - SENTENCE

Catchwords:             Attempting to pervert the course of public justice – police officer – parity with sentence of co-accused

Legislation Cited:     Sentencing Act 1991; Road Safety Act 1986; Crimes Act 1958

Cases Cited:R v Kellow and Townhend, unreported, Court of Criminal Appeal, 17 August 1979; R v Allan [1995] 2 VR 468; DPP v Mareangareu [2018] VCC 1181.

Sentence:                  Sentenced to a three year Community Correction Order subject to conditions for attempting to pervert the course of justice; sentenced to one month’s imprisonment for failing to answer bail; fined various amounts with regard to remaining summary charges.              

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms T Saville (Plea) Ms K Maikousis (Sentence)	Solicitor for the Office of Public Prosecutions
For the Offender	Ms S Joosten	Victoria Legal Aid

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HIS HONOUR: 

1Jamie Robert Mackenzie, you have pleaded guilty to one count of attempting to pervert the course of public justice contrary to the common law.  The details of your offending were set out in the summary of prosecution opening which was Exhibit A at your plea hearing.

2In summary, the circumstances of your offending were as follows.  On 26 December 2015 you were hosting a party at your home.  At approximately
5.16 pm you drove your motor vehicle to a nearby shopping centre to purchase cigarettes.  A friend accompanied you.  Having completed your purchases you intended to leave the shopping centre car park and drive home.  You reversed into another vehicle.  You stated, "I'll stop around the corner".  As you drove away the driver of the other vehicle and her friend recorded the registration number of your vehicle.  When they went to find you around the corner your vehicle could not be located; you had not stopped.

3The driver of the other vehicle reported your conduct to Greensborough police.  A registration check carried out by police identified you as the registered owner of the car.  Investigating police were aware that you were a Victorian police officer.

4On the same day, police called you on your personal mobile phone.  You told police that a number of people had been using your car at various time during the day.  You denied that you had driven the car at the relevant time or that you had been involved in any collision.  You told police that you could not say who was driving the car at the relevant time.

5Later in the day, a police officer had a further phone conversation with you.  You told her that it was your brother-in-law, Stephen Patterson, who had been driving the car at the relevant time.  Police then spoke to Mr Patterson by phone.  He said that although he had felt a bump, he did not realise that there had been a collision.

6On 12 May 2016, more than four months later, police again interviewed you.  At that time you confirmed that you were the driver of the vehicle at the time of the collision.  You said that you had stopped at a crossing and reversed and you thought you might have hit the car behind.  You told police that you panicked because you were having money troubles at the time and that you were scared and drove away.  You said that you did not know if there was any damage to the other car but you knew you had been involved in a collision. 

7You told police that after you returned to your home on Boxing Day, Stephen Patterson was with you when you received a call from police.  You said that you believed that you had a conversation with Mr Patterson about him taking responsibility for the collision.  You said that you assumed that he had in fact taken responsibility for the collision as you did not hear anything from police for some time.  You denied requesting Mr Patterson to take the responsibility for the accident.  You told police you had no reason for failing to exchange names and addresses with the other driver after the collision.  You provided your insurance company with Mr Patterson's name as the driver at the time of the collision.

8On 27 August of 2017, Mr Patterson made a statement to police in which he stated that he was present when you were on the phone to police on the day of the collision.  He saw that you were distressed.  He said he had gestured to you to get your attention and whispered to you, "Just say it was me driving".  You then told police that it was Mr Patterson who was the driver at the time.  One or two weeks later, police had left a message for Mr Patterson to contact them.  He contacted you and asked you what to do.  You told him to stick to the story that he was driving when the collision occurred.

9The charge against you is limited to your conduct on 26 December 2015 and does not directly involve your conduct at later times.

10By way of your background, at the time of your offending you were aged 26.  You are currently aged 29.  You were born in Australia but grew up in New Zealand.  Your parents separated when you were three months old and you have had little early contact with your father.  You had no significant injuries or illnesses and you have not been the subject of any form of mistreatment.  At school it is reported that you enjoyed a supportive friendship circle and were not the target of any bullying or harassment.  You completed the equivalent of Year 11 at school.

11After leaving school you obtained a range of odd jobs.  Soon after you moved to Australia and lived with your father in Brisbane.  Later you moved to Melbourne before commencing an apprenticeship as a roof plumber and completing three years of that training.  In 2010 you joined Victoria Police and rose to the rank of senior constable before being suspended in connection with this offence.

12Like many police officers, you experienced long hours of work and suffered from related stress.  You formed a relationship with Tahlia Patterson and lived together with her from 2005.  You have two children, aged eight and two.  In 2014 you and Ms Patterson separated.  At around that time you sought psychological counselling from Dr Janet Maxwell, a clinical psychologist.  You underwent six sessions of therapy with her between May and September 2014.

13At about the time you were charged with this offence you underwent a further eight sessions of therapy with her.  I was informed that in the lead up to your offending you and your partner were suffering considerable financial and relationship stress.  It appears that you were seeking to purchase a house and land package.  Soon after being charged with this offence you were suspended from your position with Victoria Police without pay.  This added to your financial stress.

14The purposes for which sentences may be imposed by a court are to punish the offender to an extent and in a manner which is just in all the circumstances; to deter the offender and other persons from committing offences of the same or similar character; to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; to manifest the denunciation by the court of the conduct in which the offender engaged; to protect the community from the offender, or a combination of any one or more of those purposes.

15The parties were in agreement here that the principal matters to be taken into account in connection with your sentence were denunciation of your conduct and general deterrence of other persons, including other police officers, from committing similar offences. 

16In sentencing an offender the court must have regard to a number of matters set out in subsection (2) of s.5 of the Sentencing Act of 1991.  These include taking into account that the maximum penalty prescribed for the offence of perverting the course of justice is 25 years' imprisonment; current sentencing practices; the nature and gravity of the offence; your culpability and degree of responsibility for the offence; whether you pleaded guilty to the offence and if so the stage in the proceeding at which you did so; your previous character; the presence of any aggravating or mitigating factors concerning your or other relevant circumstances.

17Here, I consider that the offence of attempt to pervert the course of justice is a serious one.  Your culpability and degree of responsibility for your offending is high.  I take into account that you pleaded guilty to the offence.  It was not an early plea but it nevertheless has utilitarian value.  A trial was not required, witnesses were not required to give evidence at such trial.  Valuable court resources were not consumed.

18Each case will, to a large extent, depend on its own particular circumstances.  You have no prior convictions and have not been convicted of any offence since your offending.  In that sense, you have previously been a person of good character.  It was submitted on your behalf that the need for specific deterrence was reduced.  I accept this to a degree.  However, I note that during 2018 you became a regular user of methylamphetamine or ice, plainly a serious breach of the law.  Such conduct is relevant in considering your prospects for rehabilitation. 

19I was advised by your counsel that you had ceased your use of methylamphetamine whilst in New Zealand late last year.  I was told that in about August 2018 you were admitted to Epping Hospital as a result of drug-induced psychosis.  You spent three days there as an inpatient before being released. 

20The circumstances in which you travelled from Australia to New Zealand in 2018 are worthy of note.  Shortly before your plea was listed for hearing in 2018 you left Australia in breach of the conditions of your bail and travelled to New Zealand where you remained for approximately three months. You did not appear to answer bail in this court as you were required to do so.  I was informed that your travel to New Zealand was connected with you wishing to cease your methylamphetamine addiction.  There was no other evidence concerning that addiction.  In particular, I note the three-month period over which I was informed that you had managed to get on top of that addiction. 

21On any view, this was a relatively short period.  I consider that there would be many in the community who would be skeptical about a person with an addiction to ice being able to recover from such addiction by travelling to New Zealand to three months without any other form of treatment that I was told about.

22You returned to Australia voluntarily.  You contacted the informant and advised as to the date of your return.  You were met by police when you returned to Australia.  As a former police officer you were no doubt fully aware that a warrant would have issued for your arrest upon you failing to answer bail.

23Reports of Mr Patrick Newton and Dr Janet Maxwell, both dated in November 2017, were tendered.  Dr Maxwell had previously seen you on a treating basis in 2014 prior to your offending and also in 2016 after your offending.  She diagnosed you as suffering from a major depressive disorder of moderate severity with anxious distress.  She considered that you suffered from limited symptom panic attacks.  There was no evidence that you had reattended upon her since March 2017.  She apparently knows nothing about your later addiction to ice.

24Mr Newton considered that there were no symptoms of psychological difficulty when you attended upon him in November of 2017.  He considered that you had a longstanding problem with depression and thought that you were suffering more significant emotional distress than you were able or willing to acknowledge openly.  He considered that you were coming to terms with the implications of your offending for your lifestyle and career and thought that your prognosis for rehabilitation was good.  His opinion is of somewhat limited assistance to me in that it appears to be based, at least in part, upon his understanding that you had no history of experimenting with illicit drugs.  Whilst that may have been the case in November 2017, it was certainly not the case through 2018.

25I note and shall take into account the character references tendered on your behalf from your mother, which I note is dated in November 2017, Isaac MacDougall, who is a resident from New Zealand with whom you spent time prior to moving to Australia originally, and Shane Beckenham who has known you for the past seven years. 

26I take into account that you have lost your career as a police officer as a consequence of this offending.  Further, the prospect of you obtaining a bank loan in order to purchase a house and land package was lost at the  time.  I accept that these matters amount to a form of non-curial punishment.  You would well have known that you and Mr Patterson were partaking in illegal conduct.  For the purposes of sentencing you, I accept that there is no evidence that you pushed or persuaded Mr Patterson to take responsibility for your careless driving or failure to exchange names and addresses.  It appears that he told police that he did so because he was concerned about your financial position.

27Your counsel has informed me that you had never applied for Australian citizenship and that in the event that you were imprisoned for a term of 12 months or more, the minister for immigration may exercise a discretion to arrange for your deportation from Australia.  One effect of this would be to place you far away from your two children who at least presently reside here.  I do not consider that it would be appropriate for me to take into account how the minister might exercise his discretion in your case.  However, I accept the submission made on your behalf that if you were sentenced to imprisonment for such period, the prospect of deportation would hang over your head throughout your period of detention and would no doubt make your time in prison more onerous than would otherwise be the case.

28I also accept the submission put on your behalf that your previous occupation as a police officer would make any time spent in prison more onerous than would otherwise be the case.  I was advised that since being in custody you have been placed in protection because that history would be likely to be known to the prison population.

29I was referred by the parties to a number of sentencing decisions made by courts in relation to the offence of perverting or attempting to pervert the course of justice.  In the matter of Kellow and Townsend, a decision of the Court of Criminal Appeal in 1979, a number of police officers had committed perjury at an inquest into deaths resulting from a motor vehicle accident.  The police officers in question had falsely stated that they had not been drinking in a hotel with a fellow police officer who had been involved in the collision.  Plainly, the circumstances there were different to this matter.  Nevertheless, a statement of Young CJ at p.6 of that judgment is, I consider, of some relevance to this matter.  He said as follows:

"Public confidence in the administration of justice is vital to the welfare of society, and apart from the legal profession there are few groups in the community who are more closely connected with the administration of justice than the police force.  There are few groups who appreciate so clearly the evils of perjury."

30I consider that he could just as easily have been referring there to few groups who appreciate the evils of perverting or attempting to pervert the course of justice than police.

31His Honour went on to comment that perjury, like many other crimes, may exhibit degrees of seriousness and heinousness.  In the case before him, he considered or he accepted that the consequences of the perjury were not in the result serious.  No one was wrongly convicted, no one was wrongly acquitted, nor were the rights of any individual in any way affected by the perjury.  These he considered were undoubtedly matters that had to be taken into account when sentencing.  Nevertheless, he stated the following:

"In my opinion, however, the offences merit a custodial sentence and they do so very largely because they were committed by police officers.  Police officers stand in a special position in relation to offences connected with the administration of justice and the court cannot be seen to condone or to treat lightly willful and corrupt perjury when committed by members of the force".

32His Honour considered there that a two-year term of imprisonment was appropriate with a minimum term of six months to be served before being eligible for parole.  In the present case, of course, the offence is not one of perjury but of attempting to pervert the course of justice.  It is arguable that the likely charges that you would have faced had you honestly answered the initial questions put to you by the investigating officers would have been the summary charges of reversing a motor vehicle when unsafe to do so, a charge with a maximum penalty of a fine of three penalty units, and failing to provide information to an owner of a damaged car, an offence involving a maximum penalty of 14 days' imprisonment or five penalty units.

33The matter of Allen that I was referred to is of little assistance to me.  There, the perverting of the course of justice was of a far more serious variety than in this case.  Nevertheless, I note that the Court of Appeal considered that a term of imprisonment of 18 months, 16 months of which was suspended, was appropriate.  Likewise, the matter of Merringaru involving a charge of attempting to pervert the course of justice against a police officer was significantly more serious conduct in my opinion than the present.  There the police officer was sentenced to a term of 12 months' imprisonment.  Those cases demonstrate the range of behavior that can constitute the offence and the range of penalties.

34That your offending conduct occurred whilst you were a serving police officer is an aggravating factor and that was conceded by your counsel.  Your counsel submitted to me that it was apt to describe your offending as a single, unplanned, spontaneous but significant error of judgment by someone who should have known better.

35I accept that the original information provided by you that Mr Patterson was driving the car and that you were not may have been unplanned and spontaneous; however, there was plenty of time after that initial conversation with police to reconsider what you had told them.  On that day, you did not.  Also, I note that from the date up to the time when you eventually conveyed the truth to investigating police one might have thought that a person in your position, realising the error committed by you in that initial conversation, would have quickly corrected that account. 

36Your reluctance to do so on the day in question and over the months that followed does not show you in good light. The fact that in late August or early September – it is difficult to tell from the police summary – but nevertheless a considerable time after your offending you were still advising Mr Patterson to stick to the story that he was driving when the collision occurred reflects poorly upon you.  Plainly, it is relevant to your prospects for true rehabilitation.

37Mr Patterson was charged and sentenced for the same offence without a conviction to a two-year community correction order with a number of conditions, including performance of 500 hours of unpaid community work and assessment and treatment, including testing for alcohol abuse and dependency. 

38I do not accept the submission made on behalf of your counsel that
Mr Patterson did much more in his attempt to pervert the course of justice than did you.  He was not a police officer and I do not consider that he was likely to have the same clear understanding that you would have had as to the gravity of providing false information to police concerning the identity of the driver at the time.  Further, he was not lying to police for his own benefit; quite to the contrary.

39I do accept the submission made by your counsel that unlike you, Mr Patterson has not suffered the loss of his career as a consequence of his offending and that a term of imprisonment would not have affected him in the same way as it would you as a former police officer.

40In all of the circumstances I have come to the conclusion, and not without some considerable doubts, that the purposes for which I am to sentence you can be satisfied by imposing a non-custodial sentence. I am conscious of the provisions of s.5(4) of the Sentencing Act which states that a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

41I take into account the concession made by the prosecutor during submissions that a non-custodial community correction order was within the range of appropriate sentences.  Of course, in the end it is my decision and not hers.

42I have received the report dated 22 January 2019 from an assessment officer of Corrections Victoria to the effect that you have been assessed as suitable for a community corrections order.  I take into account the oft-quoted comments of the Court of Appeal in the matter of Boulton some two or three years ago.

43On the charge of attempting to pervert the course of justice you will be convicted and sentenced to a three-year community correction order subject to a number of conditions, but I am not permitted to make such an order with such conditions unless you consent to them. In fairness to you, I shall advise you of the proposed conditions and I will give you time to discuss them with your counsel before asking you if you do consent to such an order.

44Firstly, there are a number of mandatory conditions which apply to every community correction order.  These are set out in s.45 of the Act.  You must not commit whether in or outside Victoria during the term of the order any offence punishable by imprisonment.  You must report to and receive visits from Corrections Victoria during the period of the order.  You must report to the community corrections centre at 909 High Street, Reservoir, within two clear working days after the order comes into force.  You must notify Corrections Victoria of any change of address or employment within two clear working days after such change, and you must not leave Victoria except with the permission either generally or in relation to a particular case of Corrections Victoria.

45In addition to those mandatory conditions I intend to impose a number of additional conditions which will apply to you.  Firstly, I shall order that you complete during the three-year term of the community correction order 500 hours of unpaid community work pursuant to s.48C of the Act.  Secondly, that you be subject to supervision by Corrections Victoria in accordance with s.48E of the Act.  Thirdly, that pursuant to s.48D of the Act it will be a condition of the order that you undergo treatment and rehabilitation, including testing for drug abuse and dependence and by way of mental health assessment and treatment, which may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.

46Having heard those proposed conditions and mandatory conditions, do you want a moment to confer with your counsel?  Your counsel is nodding.  I will just stand down for a moment, let me know when you are ready.

47(Short adjournment.)

48Yes, Miss Joosten.

49MS JOOSTEN:  I have spoken to Mr Mackenzie and he will consent to the order.

50HIS HONOUR:  Thank you.  That is correct, Mr Mackenzie, you consent to those conditions?

51OFFENDER:  Yes, I do.

52HIS HONOUR: I shall impose such conviction and make those orders. With regard to the summary offences for which you are also charged, as to the charge of reversing your motor vehicle while unsafe contrary to statutory rule 296 of the Road Safety Rules of 2009 you are convicted and fined the sum of $450. As to the offence of failing to provide information to the owner of the damaged motor vehicle contrary to s.61(1)(c) of the Road Safety Act 1986 you are convicted and fined the sum of $500.

53As to the charge of failing to answer bail, I do not accept that the reason for your flight to New Zealand was solely related to an apparent addiction to methylamphetamine.  I consider it more likely that as the plea hearing date approached it became evident to you that the seriousness of your offending might well result in a custodial sentence.  I consider it was for that reason that you took flight to New Zealand where you had lived for a major portion of your youth.  It was only later that you chose to return to Australia to face the charge.  You are convicted to that charge and sentenced to a term of imprisonment of one month.

54It follows that the community corrections order that I have referred to will come into effect on the day that you are released from prison.  You are required to report to the community corrections services at Reservoir within two days of that release date.  Further, I declare that you have served, and correct me if I am wrong here, Ms Maikousis, 17 days pre-sentence detention?

55MS MAIKOUSIS:  Your Honour, it is 17 days including today, given that today would be – yes, so 16 days PSD.

56HIS HONOUR:  Yes.  Sorry, I should have read further.  Do you agree with that, Ms Joosten?

57MS JOOSTEN:  Yes, I agree.

58HIS HONOUR:  I declare that you have served 17 days pre-sentence detention including today.  I direct that such period be reckoned as time already served pursuant to this sentence and be recorded as such in the records of this court. 

59Pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty to the charge of attempting to pervert the course of justice I would have sentenced you with regard to that offence to imprisonment for a term of 12 months and ordered that you not be eligible for parole for six months.

60With regard to the offence of failing to answer bail, had you not pleaded guilty to that offence I would have sentenced you to a term of imprisonment of three months. 

61In terms of ancillary orders, what is sought?  A 464ZF order?

62MS MAIKOUSIS:  That is so, Your Honour.  The only addition that would be required is the identification of a reporting station for the purposes of taking that sample, so that would have to be added into the order.  There was a space in the document that was filed on iManage and so that would have to be written in.

63HIS HONOUR:  Nothing has been written in here.

64MS MAIKOUSIS:  Alternatively, Your Honour, I can submit a custodial version of the order which would enable that to occur whilst Mr Mackenzie is in custody.

65HIS HONOUR:  That makes sense.

66MS MAIKOUSIS:  Yes.

67HIS HONOUR:  But where do you say that should be added in this draft order?

68MS MAIKOUSIS:  Your Honour, if I may just look at those documents I can identify that pretty quickly.

69HIS HONOUR:  Yes, certainly.

70MS JOOSTEN:  Your Honour, I can indicate that order would be by consent.

71HIS HONOUR:  Yes, thank you.  I will make that order and the reason I do so is firstly because of the seriousness of the circumstances of the offending, and secondly that the order is made by consent.  Notwithstanding that consent,
Mr Mackenzie, you may or may not be aware of such a sample but generally it requires a very minor scraping of the inside of your mouth, but in the event that you did not consent to that, an authorised member of the police force will be authorised to use reasonable force to obtain that forensic sample.  Do you understand that

72OFFENDER:  Yes.

73HIS HONOUR:  Thank you.  There is a community corrections order document setting out the terms.  Just show it to Mr Mackenzie's counsel first, if you would.  It is required to be signed by you, Mr Mackenzie.  We will get copies of those documents to each of the parties in just a moment.  Is there anything else that is required of me?  Thank you.

74What all that means, or your counsel will no doubt explain it to you,
Mr Mackenzie, and I am sure you are familiar, is that the one month will have the 17 days deducted from it, reflecting the time that you have already spent in custody so presumably it might be something like 13 days, in that region.

75Thank you.

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