Director of Public Prosecutions v Melhuish

[2024] VCC 978

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-01920

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN MELHUISH

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2024
DATE OF SENTENCE:	24 June 2024
CASE MAY BE CITED AS:	DPP v Melhuish
MEDIUM NEUTRAL CITATION:	[2024] VCC 978

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Misconduct in public office

Legislation Cited:  Sentencing Act 1991 (Vic), Sentencing Regulations 2021 (Vic)

Cases Cited:

Sentence:5 months' imprisonment plus 18-month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr J. Gullaci SC	Tony Hargreaves & Partners

HIS HONOUR:

1John Melhuish, you have pleaded guilty to an offence of misconduct in public office.  The circumstances of the offending involved three separate components: two involved penetrative sexual intercourse and one involved some improper messaging between you and your victim.  The maximum penalty for that offence is imprisonment for ten years. 

2You have had no prior convictions and as I understand it have not been in any other trouble since this offending came to light.  The prosecution tendered a summary of prosecution opening for the purposes of the sentence indication hearing.  That has been spoken to by counsel for the prosecution this morning.  I am not going to go through it again.  Your conduct was directed towards a person who was a vulnerable victim of sexual violence and abuse at the hands of a partner who had a history of violence towards intimate partners.

3The context of the offending involved your knowledge of those allegations against that former intimate partner.  Indeed, you were the investigating officer into allegations made by your victim.  The second of the two incidents involving penetrative sexual contact with your victim occurred on the evening of the day that the former intimate partner was sentenced to a term of imprisonment for offences involving intentionally causing injury, false imprisonment and assaults upon another intimate partner.  Your close proximity to both the investigation, to the victim and to that accused were likely to place in jeopardy the criminal proceedings against that man.

4There has been no victim impact statement.  But counsel for the prosecution noted what the victim had said about your conduct in her statement to police in connection with the matters that she raised about your conduct towards her.  They are consistent with her degree of vulnerability. There was a power imbalance between you and her.  You exploited that power imbalance by your offending.  Police officers carry a substantial responsibility as enforcers of the law and in the use of powers vested in them.  There is a trust imposed in police officers to behave in an appropriate manner towards victims of crime.

5Your counsel provided me with a comprehensive set of submissions for the purposes of the sentence indication hearing.  Those are now relied upon in support of the plea.  They are Exhibit 1 in these proceedings.  Supplementary submissions and a list of comparative cases were also provided and marked Exhibits 2 and 3.  It is to your credit that, having heard the indication that I gave which involved both a custodial component and a non-custodial component, you have been prepared to face up to the fact that a term of imprisonment is not just appropriate but inevitable for offending of this nature.  You have pleaded guilty in the face of that indication.

6As I indicated in a discussion with your counsel this morning, having looked carefully at the cases to which he has referred me, as well as the case to which the prosecution referred me, it seems to me that the nine months which I indicated this morning is too long a sentence.  You had been suffering for some time prior to the offending conduct from the effects of severe depression and post-traumatic stress disorder in part arising from your period of employment as a police officer.  The background history set out in the report of Ms Thackery shows your disrupted childhood and upbringing.

7You have lost your marriage.  You have lost your job.  Despite the pressures of work, you were a well-regarded police officer.  Your referees speak well of you.  You are now in a relationship with a woman who seems to care a lot about you.  It seems to me that your prospects of rehabilitation are good.  I would be very surprised if you were to offend again.  You will not have the opportunity of repeating this conduct because you have lost your job as a police officer after a little over 20 years of service.  Those are extra curial punishments which need to be taken into account.    

8Having pleaded guilty, you have accepted criminal responsibility.  There has been a very significant delay between your being suspended by the police force and the inevitability of the investigation leading to criminal charges and your appearance today.  I take that into account.  The prospect of imprisonment has been hanging over your head for a long time.  That would have been an added stress and will not have helped your mental health in the intervening period.

9It is not going to be easy for you to do your time.  It never is for police officers who are required to serve imprisonment.  It will be the responsibility of the prison service to ensure that you are properly protected.  However, general deterrence requires a term of imprisonment.  It is very important that the message is out there that police officers who engage in the kind of conduct you engaged in will face a term of imprisonment if caught.  Having been caught, you have to face the music and accept the punishment.  The sentence has to involve a significant element of general deterrence.

10Doing the best I can to put together all of the sentencing considerations and giving you full credit for those that favour a reduction of sentence, I proceed to pass sentence upon you. 

11For the offence of misconduct in public office, you are convicted and sentenced to imprisonment for five months. 

12I further order that you be the subject of a Community Correction Order for 18 months requiring you to undergo 150 hours of unpaid community work.  That is to be administered through the Shepparton Community Corrections Services at 307-331 Wyndham Street in Shepparton. 

13You are to commence that order upon the completion of your term of imprisonment.  You will be required to report to the Community Correction Centre within two clear working days after you are released from detention.  There are a number of mandatory terms that apply to all Community Correction Orders, and they are that:

·    you must not commit another offence for which you could be imprisoned during the period the order is in force;

·    you must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations2021 (Vic), in other words not turning up for community work drunk or drug-affected, that kind of thing;

·    you must report to and receive visits from the Secretary to the Department of Justice or his or her delegate;

·    you must report to the Community Correction centre within two clear working days of your sentence being completed;

·    you must let the Community Corrections Officer know within two clear working days of you changing your address or job;

·    you must not leave Victoria without first getting permission to do from the Secretary of Department of Justice or his or her delegate; and

·    you must obey all lawful instructions from and directions of the Secretary or his or her delegate. 

14In addition, you must perform 150 hours of unpaid community work over the period of 18 months during which the order is in force as directed by the regional manager.

15If you fail to comply with this order, the Secretary to the Department of Justice may give you a direction to perform additional hours of unpaid community work, in accordance with the Sentencing Act 1991 (Vic).

16If you do breach the order, either by committing a further offence or by failing to comply with the terms of the order, you run the risk of being brought back here, possibly before me, and a more severe sentence being imposed upon you.  Once you have completed the work that is required under the order, the 150 hours, then the order will come to an end automatically.  It will not necessarily have to last 18 months; if you do that work within the 18-month period that will be the end of the order.

17If you do breach the order, in addition to being re-sentenced you could be liable for up to three months' imprisonment for just breaching the order.  Do you understand those terms?

18OFFENDER:  Yes, I do.

19HIS HONOUR:  Are you willing to comply with the order.

20OFFENDER:  Yes, I am.

21HIS HONOUR:  All right.  Well, perhaps your instructing solicitor would just supervise your signing of the order.

22MR GULLACI:  Yes, Your Honour.

23HIS HONOUR:  Then I'll countersign it and then that job is done.

24MR GULLACI:  Thank you, Your Honour.

25HIS HONOUR:  Mr Gullaci, are there custody management issues that need to be noted?

26MR GULLACI:  Look, Your Honour, possibly just the fact that he suffers from PTSD and he's a former police officer: if that could be noted that probably would be helpful.

27HIS HONOUR:  What about the major depressive illness?  Is that something that should be noted?

28MR GULLACI:  Look, possibly, Your Honour.  The way I read the report that seems to be a bit hand-in-hand with the PTSD but as an abundance of caution, yes.

29HIS HONOUR:  Yes, all right.

30MR GULLACI:  I think that the primary one though, as Your Honour has mentioned, is obviously his former occupation.

31HIS HONOUR:  Well we'll note those on the order.  Perhaps you would just liaise with my associate to ensure that you're happy with the content of it.

32MR GULLACI:  I will, thank you, Your Honour.

33HIS HONOUR:  But for your pleas of guilty to these matters I would have sentenced you to imprisonment for a period of nine months and ordered a
two-year Community Correction Order with a requirement that you complete 250 hours of unpaid community work.

34COUNSEL:  As Your Honour pleases.

35HIS HONOUR:  Thank you both for your help.

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