Director of Public Prosecutions v Melia

[2020] VCC 1608

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01438

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINDA MELIA

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2020
DATE OF SENTENCE:	6 October 2020
CASE MAY BE CITED AS:	DPP v Melia
MEDIUM NEUTRAL CITATION:	[2020] VCC 1608

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Harass witness; Plea of guilty; Delay; Extenuating personal circumstances; No prior convictions.

Legislation Cited:           Summary Offences Act 1966.
Sentence:  6 month adjourned undertaking, without conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Tueno	Office of Public Prosecutions
For the Accused	Mr C. Terry	Victoria Legal Aid

HIS HONOUR:

1Linda Melia, you pleaded guilty to one related summary charge that at Melbourne on 16 November 2018 you harassed a witness,

[1] A pseudonym.

Ms Sara Kristoff[1], by attempting to telephone her and sending two text messages. The offence to which you have pleaded guilty is contrary to s 52A of the Summary Offences Act 1966.

2You were originally indicted on one charge of attempting to pervert the course of justice on Indictment K11003712. This proceeding has been subject to a number of pre-trial rulings made pursuant to the Emergency Case Management protocol.

3In the course of the pre-trial hearings, the prosecution ultimately indicated that it would be prepared to discontinue the indictable proceeding on the basis that you consented to the filing, out of time, of the summary charge.

4On this day, that summary charge having been filed and brought before this Court, you pleaded guilty to that charge and a notice of discontinuance was filed in respect of the indictable charge of attempting to pervert the course of justice.

5Ms Tueno, who appeared on behalf of the Director of Public Prosecutions, tendered and read to the Court an amended summary of prosecution opening for plea.

6Mr Terry, who appeared on your behalf, accepted that the summary provided accurately described the circumstances of your offending and could properly form the factual basis for sentence.

Circumstances of offending

7Your offending can be summarised in the following way.  The complainant,
Ms Kristoff, had been in a relationship with Maroun Zakkour for approximately three months prior to the offending.

8In her first statement to police, Ms Kristoff stated that during their relationship, Mr Zakkour had been verbally and physically abusive towards her on several occasions when he attended at her home.

9On 13 November 2018, Mr Zakkour attended her home and was verbally abusive whilst he tried to get into the house.  Police were called and, at about 3:55pm the next day, police located Mr Zakkour and arrested him, after which he was remanded in custody.

10At 11:44am on 16 November 2020, Mr Zakkour called you from the Melbourne Assessment Prison.  That conversation lasted about three minutes or so and was recorded.  Mr Zakkour told you that he needed your help and that
Ms Kristoff needed to withdraw the charges against him, as he would face a prison term because of his prior convictions.  He asked you to talk to
Ms Kristoff and to ‘tell her she has to go into the police station and make a different statement’.  You replied, 'I'll take her down there'.

11At 11:49am that day you made a call to Ms Kristoff’s mobile, but she did not answer the phone.  About a minute later Ms Kristoff returned your call. The phone records relating to that call indicate that it lasted for 27 seconds, however what was discussed in that call is not known.  Ms Kristoff recently made a statement to police and was asked to recall what was said, however she could not do so.

12At 11:52am and 11:54am, you then sent the following text messages to Ms Kristoff.  They said:

'Get fuked I thought it was my own man surprise it was your bloke who can't call you.  Your pushing me away treating me like one of your blokes...  you know what your pretty fucked have you ever ended anything without jacks.' [sic]

'He loves you has some ring he has children think of the kids and not Sara who has nothing but tme to kill at the cop shop and it's not good on your name.  I don't want your blokes calling me S. Me games I don't like where your going…'. [sic]

13It is that conduct which makes out the summary offence to which you have pleaded guilty.

14On 14 April 2019, you were arrested and conveyed to Broadmeadows police station where you were interviewed.  During that interview you stated that you only vaguely knew Mr Zakkour and that you told him that you would pass on a message to Ms Kristoff because you just wanted to get him off the phone.  You said that you had done nothing wrong and that after you spoke with Mr Zakkour you did contact Ms Kristoff and passed on a message.

Procedural history

15Turning to the procedural history of this matter.  As I have indicated, this offence was committed on 16 November 2018. You were arrested on 14 April 2019 and apparently charged shortly afterwards.

16There was a contested committal in this matter, involving Mr Zakkour, which took place on 18 July 2019.  Ultimately, your matter was listed for trial on 3 August 2020, but due to the COVID-19 pandemic could not proceed, and it was therefore referred for Emergency Case Management.  It resolved to a plea in the manner I have previously described, after pre-trial rulings and a case conference.

17I note that Mr Zakkour was sentenced in this court on 11 December 2019 to a total effective sentence of 2 years' imprisonment with a non-parole period of 15 months, and was sentenced to 18 months’ imprisonment with respect to the charge of attempting to pervert the course of justice, as well as some additional matters. On 26 March 2020, the Court of Appeal substituted a lesser sentence of 22 months – that is, a total effective sentence of 22 months with a non-parole period of 13 months – however the sentence with respect to the charge of attempting to pervert the course of justice remained unchanged.

18In my view, the parties have taken what is both a practical and sensible approach in resolving the matter and one for which all should be congratulated.  It has saved a good deal of court time and it is in everyone's interests to have this matter finalised expeditiously.

Personal history

19Turning to your personal history.  You are now 38 years of age.  You are a single mother and the sole carer of your significantly disabled 10 year old son.  Normally you live in a unit in Preston but you have temporarily moved to live with your mother in Sunbury, and this has enabled you to get some practical support in the care of your son from your mother.  In the current pandemic, he has to be home-schooled.

20Your son's condition is described in a letter authored by Professor Monique Ryan, Director of the Department of Neurology at the Royal Children’s Hospital, of 21 November 2018 in the following terms:

Jake is an 8 year old boy who remains under the care of the neuromuscular clinic at the Royal Children's Hospital.  Jake has spinal muscular atrophy, a genetic disorder which results in significant and progressive weakness of the limb and breathing muscles, progressive joint contractures, feeding difficulties and poor weight gain. Jake has also scoliosis and joint contractures. He is dependent on nasogastric feeds and has recently commenced a nocturnal non-invasive ventilation for his respiratory insufficiency.

21Jake is fully reliant on you for matters such as personal hygiene, alteration of his positioning during the night, feeding, monitoring of his sleep and so on.  He underwent spinal surgery in April 2019 and had a respiratory infection in December 2019.  Indeed, his respiratory system is somewhat compromised and he is therefore vulnerable to infection from COVID-19.

22Your circumstances are obviously dominated by the responsibility you have in caring for your son.  As to the circumstances of the offending it seems to me important to take into account that there had been some pre-existing history between you and the complainant, and indeed Ms Kristoff refers to this somewhat obliquely in a recent statement she made of 1 September 2020. 

23In that statement she says at paragraph 6:

I had found out around that time that she'd' [Ms Melia] had sex with Maroun in my house while Maroun and I were seeing each other.  I think she was actually the one to tell me that and I know I was feeling betrayed by her, feeling like she had betrayed our friendship by doing that with him, but I really can't remember talking to her on the phone.

24The messages the subject of this charge should be seen, it seems to me, in the context of the overlaying disharmony that appears to have existed between you. 

Submissions and consideration

25Mr Terry points out that your offending on this occasion did not involve any threats or coercion, nor were you the person to stand to gain anything from approaching Ms Kristoff.  You were acting at the behest of Mr Zakkour and judging from Ms Kristoff’s second statement, such harassment as there was, appears to have been relatively ineffectual.  Certainly the real culprit in the scheme of things - Mr Zakkour - has been appropriately punished for this offending.

26I take the view that this is by no means a serious example of this offence.  That is to say it is very much at the lower end of the range for this kind of offending.  In addition, Mr Terry relies on your plea of guilty, which has a substantial utilitarian benefit and in your case also clearly facilitates the course of justice. It was made in circumstances in which you could have easily contested these matters.  There has also been a delay approaching two years which I accept has been punitive for you.

27Ms Tueno, on behalf of the prosecution, accepted that your offending can be viewed as tending toward the lower end of the range for this type of offending.  It was submitted that there was nonetheless some emphasis required on general deterrence, and I have taken those submissions into account.

28In summary, I accept that your personal circumstances are, to say the least, extenuating. I regard it as significant that there are no prior convictions alleged. Moreover, the nature of your offending, your plea of guilty and the delay in finalising your proceeding combine to powerfully mitigate your position.

Sentence

29In those circumstances, I am prepared to accept your counsel's submission that the appropriate penalty in respect of this matter is to place you on an adjourned undertaking for a period of six months without conviction.

30You will be required to be of good behaviour for a period of six months during the time of the undertaking.  You should understand that if you were to breach the undertaking by committing an offence you would be brought back before me for the purposes of being dealt with again in respect of this matter.

31I should say to you, Ms Melia, and Mr Terry I am sure will explain the details of that order to you, but for present purposes it is important that you understand that you're being asked to make a promise to be of good behaviour for six months.  I take it you're prepared to make that promise?

32OFFENDER:  I am, Your Honour.

33HIS HONOUR:  Yes, very well.  I have signed those orders. Mr Terry, is there anything arising from those sentencing remarks?

34MR TERRY: No, there's not, Your Honour. 

35HIS HONOUR:  Yes, very well.  Ms Tueno, is there any matter you wanted to raise on those sentencing remarks?

36MS TUENO:  No, Your Honour.

37HIS HONOUR:  Thank you.  Ms Melia, that concludes your matter now. 

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