Director of Public Prosecutions v McCaskill

[2017] VCC 159

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION	Revised Not Restricted Suitable for Publication
GENERAL LIST

Case No. CR-16-02100
Indictment No. G12705211

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE WILLIAM MCCASKILL

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February and 1 March 2017
DATE OF SENTENCE:	2 March 2017
CASE MAY BE CITED AS:	DPP v McCaskill
MEDIUM NEUTRAL CITATION:	[2017] VCC 159

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:               Sentence – attempting to pervert the course of justice
Legislation Cited:      Crimes Act 1958; Sentencing Act 1991
Cases Cited:              R v Renzella [1997] 2 VR 88

Sentence:Convicted and sentenced to three months’ imprisonment.  Section 6AAA declaration: conviction and sentence of six months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Duckett	Solicitor for the Office of Public Prosecutions
For the Accused	Mr B Balmer	Balmer & Associates

HIS HONOUR:

1You have pleaded guilty to one charge of attempting to pervert the course of justice.  This carries a maximum penalty of 25 years’ imprisonment. 

2The circumstances of your offending are set out in the Outline of Summary of Prosecution Opening (exhibit A).  Those circumstances need little elaboration.

3In summary, you were on remand from 2 January 2016 awaiting trial on eight offences that arose in circumstances of domestic violence regarding your relationship with your former partner, Kristie Hanley. 

4While on remand, you telephoned a friend of Ms Hanley on a number of occasions between 11 and 15 January 2016.  Put simply, that comprised an attempt by you to get Ms Hanley to change her evidence in relation to the allegations against you of domestic violence and other offences in which she was the victim.

5The police were informed of these telephone calls.  They could quite simply investigate you, as telephone calls by a person on remand are apparently recorded.  In fact, on 12 January 2016, the police listened to tapes of the relevant telephone conversations that took place the day before, on 11 January 2016.

6You were on remand from 2 January 2016 until you were bailed on 2 May 2016 on the eight charges already mentioned.  You were thus in custody for 121 days.  These eight charges were not dealt with by the Bendigo Magistrates’ Court until 12 September 2016.  You were convicted and given a Community Correction Order for 12 months, with unpaid community work and a number of conditions, including treatment and rehabilitation requirements.

7You were then charged with the offence before me on 10 October 2016.  You pleaded guilty at the earliest opportunity.  You have no prior criminal convictions that are relevant.

8Turning to matters personal to you.  You are 35 years old, have three children by a previous relationship, and have a solid employment history.  You have been in employment as a glazier since being released from prison in May 2016. 

9When you and Ms Hanley were together, you both shared usage of ice.  You were addicted to ice at the time of the offending before this Court.  Two urine samples taken on 16 December 2016 and 13 January 2017 produced results showing the presence of amphetamine-type substances.  These samples are referred to in a Corrections report that I will refer to later.

10A number of documents have been tendered on your behalf.  Exhibit 1 is an Outline of Defence Submissions:

·Exhibit 2 is a report from Tim Jezard, psychologist, dated 16 November 2016

·Exhibit 3 is a joint reference from a number of family members, dated 10 January 2016

·Exhibit 4 is a reference from Carmel Clemson, Justice of the Peace, dated 18 November 2016

·Exhibit 5 is a reference from your employer, Jason Reeyes, dated 21 November 2016

·Exhibit 6 is a letter from Daniel Fawkner, alcohol and drug practitioner, dated 17 February 2016

·Exhibit 7 is an undated reference from a police officer, Peter Barmby.

·Exhibit 8 is an updated report from Tim Jezard, dated 27 February 2017.

11These exhibits support remorse on your part, your regular employment and entering a new relationship with a lady who has attended court.  This body of evidence supports the submission that you have taken some steps towards rehabilitation over the last 12 months or so.

12I accept your prospects of rehabilitation are reasonable if you are able to deal with your drug problem. 

13Your counsel submitted that you were entitled to have a number of matters in mitigation taken into account.  It was submitted that this was not a serious example of this type of offending.  It could be said that any offence of this type is serious, aimed as it is to the heart of the proper administration of justice, and carrying a maximum penalty of 25 years’ imprisonment.

14However, I do not consider your offending was as serious an example of an attempt to pervert the course of justice as other cases, when the full range of such offences is considered.  The prosecution conceded it was not at the high end. 

15You were still addicted to drugs at the time the offence occurred.  You were on remand and in prison for the first time in your life.  Your very early plea not only indicates remorse, but also has the obvious utilitarian benefit of saving the community time and expense and saving witnesses the ordeal of giving evidence.

16You are entitled to the particular benefit of sparing witnesses in a case such as this that involves serious domestic violence and necessary emotional stress following a broken relationship.  You have no relevant prior criminal history, you have a solid employment history.

17Delay has been relied on and is relevant, because it has allowed a period of time in which to gauge your attempts at rehabilitation.  Those attempts to date have been mostly to your credit.  Overall, they do show progress.

18Your counsel submitted that a further Community Correction Order was the appropriate disposition on the first hearing date, 24 February 2017.  Nothing was placed before the Court as to your compliance or otherwise with respect to the Community Correction Order given to you in Bendigo in September last year.

19Accordingly, I stood the plea down and granted counsel the opportunity to contact Corrections so that I would have some evidence as to your attitude and compliance with that order.  I was told this could not be accommodated on the first plea day.

20The matter was adjourned for further plea to 1 March 2017.  On that second plea date, a Progress Report for Community Correction Order dated 24 February 2017 was received (exhibit 8).  A videolink to the two authors of that report was organised. They were questioned by both counsel, and me. 

21Their report is self-explanatory.  It was critical in a number of ways of your attitude to the Community Correction Order requirements.  In the end, and after those Corrections officers were given the opportunity by counsel to alter their opinions, they both considered you not suitable for a further Community Correction Order.

22At the conclusion of the officers’ evidence and after considering all the evidence, including the progress report, mindful of the exercise required by s5(4C) of the Sentencing Act, I indicated that I considered a Community Correction Order with or without a term of imprisonment attached was not an appropriate disposition.  I indicated this clearly to counsel.  I gave them the opportunity to make further submissions on sentencing in view of that indication. 

23Following those submissions, and undertaking the s5(4C) exercise, I still consider the purposes of sentencing cannot be achieved by a Community Correction Order, with or without a term of imprisonment attached.

24I take into account the 121 days you have spent in custody in regard to the eight charges already mentioned.  This time was variously referred to as “Renzella[1] Time” or “dead time”, in the course of submissions. It is not time held in custody within the terms of s18 of the Sentencing Act.  Nevertheless, I have taken it into account in an overall way in arriving at just punishment in all the circumstances of your offending.

[1]R v Renzella [1997] 2 VR 88

25As well as those matters personal to you that I have referred to, I must also take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence I will impose this day.

26The community cannot tolerate attempts to pervert the course of justice.  The message must be clear.  Your sentence must manifest the community’s denunciation of your conduct and impose just punishment.

27I must protect the community from any repetition of this type of offending, attempting as it does to strike at the heart of the system of justice.

28I must seek to deter you from further offending, and others from such offending.  This is without doubt a serious offence.

29In the circumstances, I must impose an immediate term of imprisonment.  I factor in the 121 days already mentioned in the sentencing task before me.  Stand up please sir.

30You are convicted and sentenced to three (3) months’ imprisonment. I declare one day presentence detention, pursuant to s18 of the Act.

31Pursuant to s6AAA of the Act, but for your plea of guilty, I declare that I would have imposed a sentence of six months’ imprisonment.

32You can take Mr McCaskill, thank you.

33PRISON OFFICER:  Yes, Your Honour.

34COUNSEL:  As Your Honour pleases.

35HIS HONOUR:  10.30 tomorrow.

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