Director of Public Prosecutions v Motley (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT WODONGA

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

PORTER MOTLEY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Wodonga
DATE OF HEARING:	17 May 2024
DATE OF SENTENCE:	28 May 2024
CASE MAY BE CITED AS:	DPP v Motley (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 768

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea
Catchwords: Sentencing – attempting to pervert the course of justice – persistent contravention of family violence intervention order – pleas of guilty at earliest reasonable opportunity – relevant criminal history – diagnoses increase risk of reoffending – diagnoses reduce moral culpability – guarded to reasonable prospects of rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Verdins v R (2007) 16 VR 269; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169;
Sentence:Total effective sentence: 26 months’ imprisonment with non-parole period of 14 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	D. O’Doherty	Office of Public Prosecutions
For Accused	J. Miller	Kurnai Legal

HIS HONOUR:

Porter Motley,[1] you have pleaded guilty to one charge of attempting to pervert the course of justice between 5 June and 31 July 2023, persistently contravening a family violence intervention order between 16 and 19 June 2023, and again between 27 July and 3 August 2023.
[1] A pseudonym.

Summary of offending

The agreed basis for your guilty pleas is set out in the prosecution opening dated 22 April 2024.
In summary, since 2021, you have been in a long-term relationship with someone whom I will call Diane Stokes.[2]
[2] A pseudonym.
On 24 March 2022, a limited family violence intervention order was made against you to protect Ms Stokes. You were served with the order on that day. It prohibited you from committing family violence against Ms Stokes or damaging her property.
A little over a year later, on 30 May 2023, police arrested you for breaching the order from 27 May 2023. You were charged with contravening the order, recklessly causing injury, assault, and criminal damage.
The next day, on 1 June 2023, a Wodonga Magistrate varied the order to increase restrictions on you, prohibiting you from contacting Ms Stokes at all, being within five metres of her, going within 50 metres of her home or workplace, or getting anyone else to do so. You were further remanded in custody and the order was served on you the next day, 2 June 2023.
However, on 5 June 2023, you did contact Ms Stokes by getting your mother to do so and to put her on the phone. You asked Ms Stokes to go to the police and withdraw her statement, because, you said, this would help you get bail. You asked her to use the name ‘Louise’ so you could add her to your phone list.
On 8 June, you spoke with her again with the help of your mother. You repeatedly asked her to contact police and tell them she lied in her first statement. You apologised saying you knew the statement was not a lie, but persisted with your request.
On 14 June, you told your mother that any letters you send to Stokes must be addressed to your mother to avoid breaching the intervention order, showing that you knew you should not contact her. You confessed to your mother that everything in the statement ‘actually did happen’ but asked your mother to speak to Stokes about withdrawing the statement. Later that day, you asked Stokes to get a new phone number, use a false name and your mother’s address, so she can be added to your phone list.
On 15 June, you asked your mother to contact Ms Stokes and to tell her again to tell police her statement was a lie. You asked your mother to accompany her to the station because the police would ‘try and scare’ her. Later that day, you asked Ms Stokes to speak to her grandmother about the grandmother’s statement against you. You reiterated that regardless she must tell the police that she lied in her statement, and not let the police scare her.
That day, Stokes attended the Wodonga courthouse with your mother and completed a written application to revoke the interim intervention order made on 1 June (Charge 1 – attempting to pervert the course of justice).
From the next day on, between 16 and 19 June 2023, you called Ms Stokes 25 times.
On 16 June, you told your mother that the fake contact ‘Louise Motley’[3] on telephone number ending 0524 had been added to your phone list.
[3] A pseudonym
Later that day, you spoke to Ms Stokes apologising for making her do the ‘statement thing’. When she said she should not have spoken to the police, you replied that she should have because it taught you a lesson.
You also asked Ms Stokes if she would refute her grandmother’s account in court. You told her that you had explained to your mother that everything in her police statement was true. You called her four more times that day.
On 17 June, you called her seven times. On 18 June, you called her nine times. On 19 June, you called her again (Charge 2 – persistent contravention of family violence intervention order).
On 24 June, investigators discovered that Louise Motley was really Ms Stokes and removed her from your phone list.
On 5 July 2023, you were transferred to Ravenhall Correctional Centre. Ms Stokes provided a new fake name, Courtney Brown, and a new phone number, ending 9621, to Ravenhall.
It was approved and put on your phone list on 27 July 2023 and on that day, you contacted her eight times. This is part of Charge 3 (Charge 3 – persistent contravention of family violence intervention order).
On that day, you also expressed your dismay that she had yet to attend the police station and asked her to go to see the police in the next couple of days (see Charge 1).
The next day, on 28 July, you spoke to Ms Stokes another eight times (see Charge 3). You again urged her to go to the police soon. You asked her to add a reminder to her phone (see Charge 1).
On 29 July, you spoke to her another seven times. You complained about being in custody and got into an argument with her, during which you blamed your situation on her. On 30 July, you spoke to Ms Stokes on another seven occasions (see Charge 3).
You told Ms Stokes that she needed to go to the police soon, or you would be in prison for longer than 12 months. On 31 July, you called Stokes in the morning, and again urged her to go to see the police and call the Health Commissioner for you (see Charge 1).
Later that day, you called Ms Stokes on three more occasions. You became aggressive and directed a tirade of abuse towards her, stating that she does not think of you when you are not on the phone with her. You also called her on three occasions on 1 August 2023.
On 2 August, you called Ms Stokes six times. You continued to verbally abuse her and you continued to escalate becoming very aggressive.
On 3 August, you called her 10 more times. You questioned her about being with other people and threatened her about the way she spoke with you because it made you feel like she was calling you an addict, and that she would regret it when you returned to the community. You accused her of being a liar and stated that you preferred for her to lie to you over the phone because if she had lied to your face, you would knock her out. The argument and verbal abuse continued to escalate (see Charge 3).
Prison staff observed the latter calls you made around 3 August and commenced an investigation into the contact ‘Courtney BROWN’. When they found it to be Ms Stokes, they removed her from your list.
On 22 August, Ms Stokes attended the police station at Wodonga and provided a statement of no further complaint about the May 2023 incidents. She refused to provide a statement about the calls from custody.

Procedural history

You were not formally interviewed in relation to these allegations.
On 14 December 2023 at a committal mention, at the earliest reasonable opportunity, you indicated you would plead guilty.
Your plea has utilitarian benefits and reflects your acceptance of responsibility for what you did and your willingness to facilitate the course of justice.

Personal circumstances

You are now 30 years old, and you were 29 at the time of your offending.
When you were very young, your parents separated, and you lived with your mother alone, when you were five or six. She struggled with your behaviour and so you moved to be with your father from age 14, although now you have a close relationship with her.
Living with your father, you experienced physical and emotional abuse and were exposed to your father’s drinking. You absconded when you were 15 and have had no real contact with him since 2013.
For the past three years you have been homeless, couch surfing, living on the streets or in your car. In 2019, you were sentenced to a term of imprisonment and lost custody of your son, which was a deeply traumatic experience for you. Your son is currently in the care of your mother.
You told the psychologist, Ms Cokorillo, that you were always angry and out of control at school. You said that you bullied others and you were suspended more than 10 times. You reported that in about Grade 4, you were diagnosed with ADHD but did not keep up the medication because you did not want it to slow you down.
You started drinking and smoking cannabis when you were in your early teenage years. By the time you were 20 you used an average of 14 standard drinks per day, you said. Around age 18 to 20, you started using ecstasy and methamphetamine. You reported daily use of significant amounts of methamphetamine just prior to your arrest in this case. You admitted to Ms Cokorilo that you were confronted by the idea of staying drug free as you do ‘not know what life is like without [drugs]’.
You have previously been in Court for driving, weapons, dishonesty, violence, and for breaching court orders at the Magistrates’ Court level. This is your first time being sentenced in the higher courts, aside from appeals.
In 2014 you received a CCO for damaging property and that order included drug and alcohol counselling.
In 2016 you were, on appeal, placed on another CCO for breaching the 2014 order and for damaging property, assault and making threats to inflict serious injury. The new order included an anger management program.
In 2020, you were sentenced for breaching that CCO and sent into custody for one year. Later in 2020, you were also given a three-month sentence of imprisonment for stalking, making threats, damaging property and breaching an intervention order.
In 2022 at Albury Local Court, you were gaoled for seven months for stalking and other charges, and then released on a nine-month CCO.
At the beginning of last year, 2023, you were gaoled for 30 days for assault and then released on a CCO for damaging property, causing injury and other offences.
I will not punish you again for your past offending, but I have to set out your past offences and consider your progress on previous orders when deciding how much weight to give to deterring you from getting into further like-trouble and the need to protect the community.
While on remand, I accept that you have engaged in courses, including drug courses, which are positive indicators. This includes all the courses in the ATLAS suite, several Positive Parenting Program seminars, a course called Ice and Me, and Tuning into Respectful Relationships (Exhibit 1). You appear motivated by the potential for living with Ms Stokes and your new daughter. You also expressed increased confidence in staying away from drugs in the community since you started methadone therapy in custody. These are to your credit.
In preparation for Court, you saw psychologist Sandra Cokorilo and she has provided reports of your assessment dated 13 June 2022 (Exhibit 2) and 9 May 2024 (Exhibit 3).
Ms Cokorilo stated that things in your early environment have compromised your emotional and behavioural development, and contributed to a chain of behaviours, including your difficulty fitting-in, that had resulted in homelessness and drug and alcohol abuse. She stated that your psychological condition includes a Major Depressive Disorder (MDD), Generalised Anxiety Disorder (GAD), borderline personality disorder (BPD) on top of possible ADHD, which has remained untreated since you were young.
These conditions mean you sometimes have poor self-control and difficulty managing your feelings. I acknowledge that. You sometimes act recklessly or overreact. You struggle with finding solutions to problems, especially when you need to think about the consequences of your actions or decide between multiple options.
You explained to Ms Cokorilo that the current offending was motivated by your desperate desire to get out of prison early so you can be there for the birth of your daughter. She said your aggressive behaviour may be related to your struggle to process and manage your feelings, including of jealousy and feeling inadequate when Ms Stokes’ is involved with other people.
Ms Cokorilo states that your risk of further offending is probably high based on your criminal history and past contraventions of court orders. This is in addition to your poor mental health and substance abuse, as well as contextual matters like unstable housing and the lack of positive social supports.
As someone with various mental health issues, the likelihood of you acting out of impulse and against reason increases when you use alcohol and drugs. Ms Cokorilo emphasized that you will likely require intensive long-term support in the form of alcohol and drug, psychological, pharmacological treatment and counselling, as well as participation in an anger management program. She says this will help you progress towards moving away from offending and to reduce the risk of future trouble with police.
Ms Cokorilo was of the view that given your present symptoms of anxiety and depression, plus suicidal thoughts, the prison environment may weigh more heavily on you than a person without your conditions. Further, she felt that you are unlikely to receive adequate treatment and support for your poor mental health and substance abuse whilst in custody, which would delay your rehabilitation.

Sentencing issues

The maximum penalty for Charges 1, attempting to pervert the course of justice, is 25 years’ gaol. For Charges 2 and 3, it is five years’ gaol each.
Courts have repeatedly emphasised the need to condemn and deter people from engaging in family violence. As we have come to understand the nature of such violence, we have seen that controlling behaviour is often central to what occurs. Your offending is a clear example of coercive control.
Charge 1, attempting to pervert the course of justice, is an offence that goes to the heart of our justice system. In this case, the justice system was trying to stop you harming your partner. So, by interfering with the investigation you were not only acting against the justice system, you were also putting obstacles in the way of protecting her.
Persuading her to withdraw her truthful allegations was a low blow. You should be ashamed. It was motivated by your own self-interest and need to control her. Your calls were numerous and your requests were repeated, preying on her feelings for you. They even descended to include threats and aggression, beyond merely requesting her to do what you wanted.
The gravity of Charge 1 is not low for a number of reasons. The consequences of your offending was that serious charges against you did not proceed, your calls to your partner continued for more than two months, you involved your mother in the calls, you were aggressive and made threats in some of your calls. Ultimately, Ms Stokes withdrew her allegations and complaint even though, as you know, they were all true.
I find Charge 1 to be a moderately grave example of that offence.
In relation to Charges 2 and 3, it must be noted that intervention orders are Court orders. They are not private agreements between two people. Your repeated breach of this order is like a contempt of court. The fact that the victim was your partner and someone you have professed feelings for makes this kind of conduct worse. By breaching the order, you dragged her into involvement with police and the courts.
It should also be noted that at the time, you had not long before been gaoled for 30 days on assault charges. Further, at the time of these phone calls you were on two different Court orders for previous offending. This makes what you did more serious.
The courts must impose stern sentences on offending of this type. It is one of the only ways to deter people from committing these crimes. The sentence I impose must make it clear that the community denounces what you did and will exact just punishment for it.
Having said that, the prosecutor accepted the assessment of Ms Cokorilo, as do I. I accept that you find separation from your partner, managing your frustration and controlling impulsive behaviour difficult. That is not your fault. I accept that Ms Cokorilo’s diagnoses means that some of your behaviour is not entirely volitional, which reduces your moral culpability to a degree. At the same time, it also makes your risk of future offending higher.
I also accept that your time in custody has been harder for you because of your condition and because you live every day with the knowledge that you cannot be back here helping to care for your daughter or being with your mother.
If you are to avoid the cycle of repeat offending and lock-up, you will just have to accept some help from others. You have had good experiences in the past with medication and I hope that you can find someone to talk to on your release – a counsellor or doctor – to help you work through the challenges you face.
You have plenty of experience now with these drugs. You have some insight, Ms Cokorilo says, to know that these issues keep cropping up and getting you into trouble. Now, with a new baby, is a special opportunity to deal with those things in a different way.
Your criminal history is significant. There have been a number of previous orders for similar offending. For sentence in this case, you need to serve a term of imprisonment to learn, and to confirm in your own mind, that there are consequences for acting like this. There is also an element of community protection that is required.
However, I will overlap your sentences to reflect that they all arise out of the same circumstances and to reflect the totality of what you did, and no more.
Given your history, the repeated nature of your calls, and the fact that it continued even under the watchful eye of the prison, I find that managing your impulses upon your release will be hard work. However, you have started this work in custody and shown that you can stick to it. Well done. It includes your cultural work, painting and engaging with the Torch program, alongside being a billet. This is the kind of progress that will help you navigate the transition back into the community. Overall, I find your prospects to be guarded to reasonable.
Your counsel, Mr Miller, submitted that I should let you out soon and make a CCO. The prosecution agreed that a term of imprisonment was necessary, but submitted that I should make a parole order instead so that you can be effectively supervised and supported on release.
As the parties agreed, the only appropriate sentence in your case is one that involves imprisonment. I agree with your counsel that you should be eligible for release in the coming months, but I do not agree that it should be automatic and involve a CCO. I find that the supervision of the Parole Board is more appropriate.
I will make this comment. Given the work you have done in custody, including your cultural work and your painting and the courses you have done, I expect that the Parole Board will give that considerable weight when deciding on what day you are released.

You will clearly need support, and I hope you are not ashamed of that, we all need support at different times, and I expect that your release will be one that is supervised and that you will know that if you step out of line there will be consequences, but that ultimately you do need to be released into the community to commence a new way of living.
For all of these reasons, I have allowed for a greater proportion of your total sentence to be served on parole.
I sentence you as follows:
On Charge 1, attempt to pervert the course of justice, 18 months;
On Charge 2, persistent breach of a family violence intervention order, 12 months;
On Charge 3, persistent breach of a family violence intervention order, 12 months.
Four months of the sentence on each of Charges 2 and 3 are to be served cumulatively upon each other and upon the sentence on Charge 1, making a total effective sentence of 26 months.
I fix a non-parole period of 14 months.
I declare that you have served 365 days and direct that this be reckoned as a period already served under this sentence.
But for your plea of guilty I would have imposed 35 months and fixed a non-parole period of 24 months.

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[2024] VCC 768

28 May 2024