Director of Public Prosecutions v Mountjoy

[2018] VCC 1953

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00320

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANNY MOUNTJOY

---

JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2018
DATE OF SENTENCE:	26 November 2018
CASE MAY BE CITED AS:	DPP v Mountjoy
MEDIUM NEUTRAL CITATION:	[2018] VCC 1953

REASONS FOR SENTENCE
---

Subject:Plea - sentencing

Catchwords:             Attempting to pervert the course of justice

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:2-year Community Correction Order with only condition 200 hours community work

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions at hearing For the Director of Public Prosecutions at sentence	Ms D. Mandie Mr S. Kenna	Office of Public Prosecutions
For the Accused	Mr G. Chisholm	Slades & Parsons

HIS HONOUR:

1Danny Mountjoy, you have pleaded guilty to one charge of attempting to pervert the course of justice. 

2This offence carries a maximum penalty of 25 years’ imprisonment. 

3You are now aged 34, having been born on 17 April 1984.  At the time of the offending over four years ago you were aged 30. 

4You do have a criminal record, about which I will go into more detail shortly. 

5The detailed background to your offending is set out in the prosecution opening, tendered as Exhibit A. 

6In very brief summary, on 17 August 2013 you and your co-offender, Anthony Straub, were involved in a traffic road rage incident.  You both made statements to the police that you, Mr Mountjoy, were the driver and that Mr Straub was the passenger of the car. 

7As a result of your statements you, as the driver of the car, were breathalysed and subsequently charged with exceeding the prescribed concentration of alcohol and driving whilst disqualified. 

8At your hearing on 15 July 2014 in the Dandenong Magistrates' Court, both you and Mr Straub lied, under oath, that your original statements to police were incorrect and that Mr Straub was the driver of the car on 17 August 2013. 

9The magistrate did not accept your evidence and you were found guilty of the charges of driving in excess of the prescribed concentration of alcohol and driving whilst disqualified.  You were sentenced to six months imprisonment, which you duly served.

10Mr Straub was later further interviewed by police, admitted that his evidence at the Magistrate's Court had been false, and on 3 March 2017 was charged with attempting to pervert the course of justice.  In the County Court at Melbourne on 10 November 2017 he was convicted and sentenced to serve a community correction order for two years, with 150 hours unpaid community work together with other conditions.

11On 12 March 2015, you were interviewed in relation to the current offending. 

·    You stated that the statement you had made on 17 August 2013 was correct in respect to the road rage incident - the only difference was the driver.

·    You said you were not the driver and you were covering for your mate. 

·    You admitted that you had given the sworn evidence as recorded at the Magistrates' Court. 

12This matter was resolved last week, on 22 November 2018, prior to the commencement of a trial before jury. 

13I now turn to your personal circumstances. 

14As noted earlier, you were 30 years old at the time of the offending and you are currently aged 34. 

15You have a criminal history, predominantly for drink-driving and other road traffic offences. 

16At the Bendigo Magistrates' Court in 2004, you were convicted, fined $2000 and lost your licence for nine months for relatively minor driver offending. 

17Some eight years later, in 2012 at the Dandenong Magistrates' Court, you were given a 6-month prison term, which was wholly suspended, together with a 12-month community correction order for driving whilst disqualified and drink-driving offences. 

18On 15 July 2014 in that same court and for the same offending, as noted earlier, you were again given a 6-month prison term, this time not suspended, which you duly served. 

19You live in Huntly in the Bendigo district and have worked in general farm labour and some factory work since leaving school at the end of Year 10.  Although currently unemployed you have, with the assistance of your father, been working towards self-employment in the scrap metal business.

20For the past two-and-a-half years you have led a settled life nearby to your family and have provided support and temporary accommodation to others in need.  You have assisted in caring for your mother, who is a victim of stroke and wheelchair-bound, and your father, who recently suffered a heart attack. 

21You are currently single but have three children from two earlier relationships.  Your eldest son, now aged 14, has attempted to develop a relationship with you. 

22The offending to which you have now pleaded guilty is regarded seriously by the courts.  The maximum penalty of 25 years' imprisonment is a reflection of how significant Parliament considers this offence. 

23You are more culpable than your co-accused, as it was you who stood to benefit from the dishonest evidence, and I am satisfied beyond reasonable doubt that you inveigled your co-accused into giving his cooperation.

24Offending of this nature can seriously affect public confidence in the law, thus undermining the administration of justice.  Principles of general and specific deterrence must assume a higher significance, and ordinarily an offender can expect a sentence of imprisonment to be immediately served.

25In mitigation, I take into account the matters urged upon me by your counsel and, in particular:

·    your plea of guilty for its utilitarian effect as well as expression of remorse,

·    the support you have provided to your family and the support you receive in turn from them,

·    the motivation you have shown to work and your future work prospects,

·    your recent settled life circumstances and the support you have given to others in need by way of temporary accommodation, 

·    that whilst you have prior convictions for earlier offending and, without at all diminishing the serious nature of the offence of drink-driving, those offences relate principally to culpability for road traffic violations. 

·    in particular, the delay of five years from the date of the original incident and four years from the date at which you ultimately gave false evidence under oath at the Magistrates' Court - that delay cannot be attributed to any act of neglect on your part, nor can the delay from the time you presented at trial last week to the time of your plea last Thursday be attributed to you,  and

·    that in the four years since the offending you have not committed any further offences. 

26The basic purpose or purposes for which a court may impose a sentence are punishment, deterrence - that is both specific to you and general to deter others that might be like-minded to commit offences, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, its context, your personal circumstances, and those of any victim.  I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

27On balance, in the particular circumstances of this case, the purpose or purposes for which the sentence is imposed can, in my view, be achieved by a sentence that does not involve your immediate confinement in prison.  I accept that the period of time that you have been under the emotional burden of the prospect of receiving a lengthy time in prison will have weighed heavily upon you and will have had a salutary effect on your prospects of rehabilitation. 

28I intend to impose, with conviction, a community correction order.  The correction order should not be considered light punishment and will still be an onerous one because of community work requirements.  It also stands on your record as very serious offending. 

29On Charge 1 of attempt to pervert the course of justice, you are convicted and ordered to serve a community correction order for a period of 24 months. 

30The community correction order commences today and will end on 25 November 2020.  The Corrections centre you will attend is the Bendigo Community Correctional Service at Bendigo Justice Service Centre,  3 William Vahland Place, Bendigo, and you must attend there within two working days after the commencement of the order, which will be by 4 pm this Wednesday,
28 November 2018.

31All the mandatory terms of a community correction order apply, and the only program condition I impose is that you perform 200 hours of unpaid community work as directed by the regional manager. 

32I believe you have already had the mandatory terms of the community correction order explained to you - that has happened once before - and no doubt your counsel has discussed these matter with you, but I will just go over them again now. 

33The mandatory terms are that:

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

·    you must comply with the requirements of regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the community corrections centre - that includes such things as not attending drug- or alcohol-affected;

·    you must report to and receive visits from the community corrections officer;

·    you must report to the community corrections centre, that is the Bendigo Centre, within two clear working days of the order starting and, as I have already indicated, that is by 4 pm this Wednesday 28 November 2018;

·    you must notify a community correction officer of any change of address or employment with two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from the community corrections officer; and

·    you must obey all lawful instructions from, and directions of, community corrections officers - such directions may be given either orally or in writing. 

34If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the order.  In either case you must notify the Bendigo Justice Service Centre,  and I recommend that you obtain legal advice if any of those matters happen.

35However, I must warn you that if you breach any condition of this order, you will be brought back to court and that will be back before me.  One of the options open to me then is to cancel the community correction order and re-sentence you on the original charge.  I may also deal with you for the breach, which is an offence itself, by sending you to prison for up to three months.

36Mr Mountjoy, do you understand the consequences of breaching the community correction order?

37OFFENDER:  Yes, Your Honour.

38HIS HONOUR:  All right, I will now ask you to sign the community correction order.  If that could be passed to Mr Mountjoy's counsel?  Now, you can come down, you can leave the dock for that purpose, Mr Mountjoy.

39MR CHISHOLM:  Thank you, Your Honour.

40HIS HONOUR:  Thank you.  Anything else from either counsel?

41COUNSEL:  No, Your Honour.

42HIS HONOUR:  No?  Thank you, Mr Kenna.  Thank you, Mr Chisholm.

‑ ‑ ‑