Director of Public Prosecutions v Muller
[2021] VCC 286
•23 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01467
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TORY LINDSAY MULLER |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 March 2021 | |
DATE OF SENTENCE: | 23 March 2021 | |
CASE MAY BE CITED AS: | DPP v Muller | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 286 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL
Catchwords: Plea of guilty – one charge attempt to pervert the course of justice – related summary offences of possessing cartridge ammunition without a licence or permit and dealing with suspected proceeds of crime.
Legislation Cited: Crimes Act 1958 (Vic) ; Criminal Procedure Act 2009 (Vic) Firearms Act 1996 (Vic); Sentencing Act 1991.
Cases Cited:DPP v Aydin and Kirsch [2005] VSCA 86 ; DPP v Josefski [2005] VSCA 265 ; R v Kellow and Townsend (unreported, CCA Vic, 17 August 1979, Tognolini v R 32 VR 104
Sentence: Total effective sentence of 107 days imprisonment with a Community Corrections Order of 24 months and a fine of $200.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Keks | Office of Public Prosecutions |
| For the Accused | Ms N. Georgianni | Giorgianni & Liang Lawyers |
HER HONOUR:
Introduction
1
On 7 April 2020 a Jeep Cherokee collided with a guard rail on
Hamilton Highway in Fyansford near Geelong. The driver called a taxi to take him from the scene. Early in the morning of the following day the police went to the site of the collision and spoke to a man standing nearby; that man denied being the driver of the car; he told police he had been asked by a friend to go and collect it. Police searched the car and found drugs in it.
2 About two weeks later, on 25 April 2020, a different man walked into a police station and told police (in a voluntary interview under caution) that he was the one who had been driving the car at the time of the collision. That statement was false.
3 A police investigation would later reveal the man who confessed to driving the car was paid $4,000 (part of which he had already spent on a car before he spoke to police) to do so. When police apprehended him for this, they found some cartridge ammunition for which he did not have a license in his car.
Pleas of Guilty and Maximum Penalties
4 Tory Muller, you have pleaded guilty to one charge of attempting to pervert the course of justice, a common law offence, which carries a maximum penalty of 25 years imprisonment. You have also pleaded guilty to the related summary offences of possession of cartridge ammunition without a license, an offence which carries a maximum penalty of 40 penalty units, and one charge of dealing with property suspected of being the proceeds of crime, an offence which carries a maximum penalty of two years imprisonment.
Circumstances of the Offending
5 The circumstances of your offending are set out in the summary of prosecution opening on the plea dated 21 February 2021. That document became Exhibit A on the plea; subject to one qualification, which I will deal with later, it is attached to and forms part of these reasons. I am not going to repeat it here but refer to some of its parts.
6 In essence, you were put up to making a false statement by a man named Orde, who was, in turn, assisted by a Ms Goodwin. Ms Goodwin owned the car. Her partner, Mr McDonnell, is an associate of Mr Orde. Mr Orde and Mr McDonnell discussed finding a way to make the police believe that Orde was not the driver of the car at the time of the collision.
7 On 11 April 2020, Mr Orde rang you and told you that he would give you $4,000 to 'take the [charge] for me'. After some bargaining, you agreed. You then had a conversation with Ms Goodwin. That exchange happened over text. Ms Goodwin gave you the number for the Hamilton police station. She said:
..'so I emailed them saying the car was being worked on by a group of friends in Warrnambool as I wanted to sell it and needed it roadworthy. I said I don't know what happened until the Geelong police called me. Are you sure you want to do this for Will [Mr Orde] I don't feel good about it.'
8 You then replied:
'okay no worries thank [sic] I'll get onto them n I've already been fixed up for it iv committed to it'
9 I note for the record that these comments were wrongly attributed in the prosecution opening – this has now been amended and was corrected on the day of the plea.
10 On 12 April 2020, before you had fulfilled your promise to make a false statement to police, you bought a car for $1,800. This was part of the money you had been paid by Mr Orde. (Summary charge: Dealing with property reasonably suspected to be the proceeds of crime.)
11
When police visited Ms Goodwin on 21 April to investigate the matter she told them that you were the driver. Ms Goodwin has also been charged with attempting to pervert the course of justice. As have Mr Orde and
Mr McDonnell.
12 On the same day Mr Orde sent you a message saying:
'ya were quick to spend ya paycheck. How about you show the same enthusiasm chasing it up.'
13 Half an hour after getting that message you telephoned Hamilton police and reported to them that you have been involved in an accident with a black Jeep. You made an appointment to attend the Warrnambool police station. You then sent a message to Mr Orde reassuring him that you had made contact with police.
14
Four days later, on 25 April 2020 you finally attended the Warrnambool police station and told them that you wanted to hand yourself in, in relation to a car accident that had occurred near Geelong earlier in the month. You took part in a record of interview under caution. You told police that you were the driver of the black Jeep that collided with the barriers on the Hamilton Highway some time before 5 am on 8 April 2020. You told police you were on the way to see your mother in Melbourne. You told police you were driving at about
80 kilometres/ hour when you sneezed. Having sneezed, you then looked up and saw a kangaroo and swerved in order to miss the kangaroo and just ploughed straight into the barrier. You told police that you called your mate Will to tell him about the accident, then walked to Geelong. You told police that you were driving the car because you were getting it ready for a roadworthy.
15 All this information was false and you knew it to be false. This conduct gives rise to Charge 1 on the indictment: attempting to pervert the course of justice.
16 Unbeknownst to you, Mr Orde, Mr McDonnell and Ms Goodwin, Mr Orde's phone was the subject of a warranted telephone intercept. The police had seen and heard all the calls and messages between you.
Arrest and Interview
17 On 12 May 2020 you were arrested and exercised your right to silence in a police interview. At the time of your arrest, you were near the car you had bought. The police searched it and found a ziplock bag containing cartridge ammunition; at the time you did not hold a firearms license pursuant to the Firearms Act. (Summary Charge 2: possession of cartridge ammunition without a license)
Prior Criminal History
18 You have a prior criminal history, commencing in approximately 2012; much of it appears to be driving or low-level drug related, though you were dealt with for offences of dishonesty in 2015. Most of your limited prior history seems to relate to low-level drugs, some violence and a breach of orders imposed as punishment for them.
Procedural History
19
I will now set out the procedural history of your case. You were arrested on 12 May 2020. You were remanded in custody for filing hearing on
13 May 2020; you remained in custody until you were granted bail on
27 August 2020. By 6 November 2020 you had indicated your intention to plead guilty and the matter proceeded to the County Court. Your plea hearing was heard on 4 March 2021.
Nature and Gravity of the Offending: Culpability and Degree of Responsibility
20 I will now address the nature and gravity of your offending, your culpability and your degree of responsibility.
21 You were using methamphetamines and GHB at the time of your offending. Shortly before you committed these offences your relationship had broken down, in the context of escalating drug use. You had become unreliable at work and lost your job. Your car had been impounded and you needed another. You have not tried to justify what you did.
22 However, the maximum penalty of 25 years imprisonment indicates the seriousness with which the legislature regards the offence of attempting to pervert the course of justice. The reason that the charge carries this penalty is that the conduct is said to 'strike at the heart of the administration of justice'.
23 It was submitted that your offending was premeditated. There is some truth in this, though it is possible for offending to be both premeditated but still unsophisticated.
24 The prosecution do not allege that you had any knowledge about the drugs in the car.
25 It must be borne in mind that conduct such as yours that strikes at the heart of the administration of justice can undermine public confidence in that administration of justice and that confidence is vital to the welfare of society. [1]
[1] DPP v Josefski [2005] VSCA 265, per Chernov JA at [71]; R v Kellow and Townsend (unreported, CCA Vic, 17 August 1979.
26 That said, the offence is well known to encompass a very wide range of offending conduct.[2] You agreed to make false admissions to driving a car at the time of an accident. You did it for the money. You did not seek to avoid prosecution. There is no evidence to suggest that you had any understanding that potentially serious drugs charges may have been brought in relation to the drugs found in the car.
[2]DPP v Aydin and Kirsch [2005] VSCA 86, per Eames J at [26].
27 You were Mr Orde's instrument, and a rather unknowing one. You were addicted to drugs, without an income, and found yourself needing a car. From your point of view at least your offending was unsophisticated and naïve.
Personal Circumstances
28 I will now turn to your personal circumstances.
29 You were born in Shepparton and are now 30 years old.
30 Your mother and father separated when you were two or three and you remained in the care of your Mother in New South Wales.
31 When you were in grade three your father came to collect you and took you back to Victoria, where you lived until age 16. It was then that your mother moved to Victoria and you returned to live with her.
32 You have two sisters and several half-sisters, as both of your parents re-partnered.
33 You went to primary school in both New South Wales and Victoria and upon its completion you attended Cobden Technical College until year 10. You did not much like school but you were relatively well behaved. You then moved to Melbourne and you were employed as a furniture removalist.
34 You did that work for around five to six years. You then moved into the dairy industry where you worked as a dairy farmer. You have been very consistently employed throughout your life.
35 Your father worked as an interstate truck driver and introduced you to illicit substances; you commenced using methamphetamines at around 17 years of age. You found methamphetamines assisted you in your work and you continued using this drug until you were imprisoned.
36 You commenced using GHB in December 2019 and found this substance to be very addictive. You report to have ceased now all drug use and remained sober since you were arrested.
37 You have two children who are in the care of your partner Kirsty.
38 Due to an intervention order you are unable to reside with your partner, however you can see your children under her supervision.
39 You have been working full-time at a quarry whilst also working at a transport company and you are currently in the process of obtaining your truck license.
Impact on Victims
40 I have to address the impact of victims of your offending. While there is no specific 'victim' per se of your offending I do have regard to how offending of this character can undermine not only the administration of justice but community confidence in the system.
Matters in Mitigation
Plea of Guilty
41 You entered a plea of guilty to these charges and by doing so you have spared the community the costs - human and financial - of conducting a trial. Moreover, your pleas are entered at a time when the court system is facing unprecedented delay on account of the COVID-19 pandemic. When an accused person pleads guilty in those circumstances it is particularly valuable and I have taken this into account.
Remorse
42 I accept that your plea contains within it an aspect of remorse.
Psychological Material
43 A psychological report authored by Mr Warren Simmons was tendered on your case and became Exhibit 2. I take its contents into account in that it provides some personal history and some more recent context for the offending. No particular Verdins submissions were made on the basis of any matters in the report; I have taken into account Mr Simmons' opinion in relation to drug and alcohol treatment.
Prospects of Rehabilitation
44 I have considered your prospects of rehabilitation. You are now living with your mother. You are employed full time working at a quarry. A letter from your current employer, Mr Destro was tendered on your plea.[3] He confirmed you have an ongoing role with his company. Although you started on one day a week, the role has evolved to five to six days per week and sometimes more. Mr Destro has also confirmed that while you work for him you are subject to random urine screens. Another letter confirms that you have just passed your test for a truck license.[4]
[3] See Exhibit 3.
[4] See Exhibit 3.
45 You were introduced to amphetamines by your father who used them to stay up all night driving. You took up the habit and from age 17 you continued to use amphetamines regularly, changing at some point to using methamphetamines, between five points to 1.5 grams a day. In late 2019 you were introduced to using GHB which you found very addictive. This continued until you were remanded in May 2020.
46 Your relationship with your former partner has suffered as a result of your heavy drug use, however, you do sometimes still see your children under your partner's supervision. You are living with your mother. You have a strong work history and are currently employed. You are healthy and abstinent from drugs. I conclude that your prospects of rehabilitation are good.
Relevant Sentencing Principles
47 I am required to impose a sentence that appropriately punishes you for what you did. I am particularly aware of the authorities that remind me that other people should be deterred from offending in this way by my sentence. As a result of your lack of serious prior criminal history in general, the time that you have already spent in custody, I regard specific deterrence of being a relatively minor factor in this sentence. The sentence should denounce your offending: through me and on behalf of the community it must be understood that our system of justice upon which we all rely for our safety must be protected from any acts, the effects of which, is to make our system less fair or less just.
COVID-19 Restrictions
48
You entered custody on 12 May 2020 and were granted bail on
27 August 2020. The period of your incarceration was during the worst period of the pandemic in Victoria. Measures taken to protect the corrections system from outbreaks of the virus had the consequence of restricting prisoner movements, access to in-person visits, and prison programs. It was in this context that you served 107 days incarceration, and although you had some minor history of incarceration before this, this was the longest stint you have ever done and I have taken that into account.
Regard to Current Sentencing Practice
49 I have had regard to current sentencing practices. I was provided with some case examples at the plea hearing. I have had regard to the table of sentences compiled in the case of Tognolini.[5] It is worth recalling that case dealt with an accused charged with child sex offences who had arranged for two girls to attend his solicitor's office and depose false affidavits claiming that the girls who had made allegations of sexual misconduct against the accused were liars. The accused man had given the girls drugs and money in exchange for their testimony. Direct case comparisons emphasise what I have already noted, which is the very broad range of moral culpability captured by the offence of attempting to pervert the course of justice. There is no case that is exactly like yours, but I sentence you in this landscape.
[5]Tognolini v R 32 VR 104
Pre-sentence Detention
50 Pursuant to s.18 of the Sentencing Act I declare that you have spent 107 pre-sentence detention.
Disposition
51 I will now come to the disposition. It was common ground at the hearing that a sentence combining a term of imprisonment with a Community Corrections Order was open to me.
52 So, now, Mr Muller, this is the part where I deliver my actual sentence. On Charge 1: attempting to pervert the course of justice, you are convicted and sentenced to a term of imprisonment of 107 days and in addition a Community Corrections Order of 24 months duration. On the related summary charge of dealing with property suspected to be the proceeds of crime, you are convicted and sentenced to a Community Corrections Order of 24 months duration and on the charge of possession of cartridge ammunition while unlicensed, you are convicted and fined $200.
53 Pursuant to s.40 of the Sentencing Act 1991, I make one Community Corrections Order in respect of both the offences identified as carrying that sentence.
54 The total effective sentence on this indictment is therefore 107 days imprisonment and a Community Corrections Order of 24 months duration, with the addition of a fine of $200 for the ammunition charge.
Explaining the CCO
55 You will first be subject to the standard conditions of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the entire 24-month period. Let me be clear about this: if you do, you will be brought back to court before me and re-sentenced for these offences; absent very powerful reasons, you would need to expect that that will involve your incarceration.
56 You must report to the Werribee Community Corrections Service within two days of today.
57 You are required to advise your supervisor in the Office of Corrections of any change of address where you are living or working and you must do so within two clear working days.
58 It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of your Community Corrections officer. You are not able to leave the state of Victoria without their prior permission and that is for the entire 24 months.
Special conditions
59 There are also special conditions that I will attach to your order:
60 You must report for supervision in your case as directed.
61 You must submit to assessment and treatment for alcohol and drug dependence.
62 I have considered whether to impose unpaid community work as part of this order; I am aware that you are currently working and the options for imposed community work are still very limited in nature because of the pandemic. It is in that context, that I have decided not to impose community work as part of your order.
63 I also require you to participate in judicial monitoring. That means you have to come back to court, you can attend by video if you wish. But in three months' time, I am going to get you to appear in court and tell me how the order is going.
6AAA
64 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty but been found guilty after a trial I would have imposed a sentence of 12 months imprisonment with a non-parole period of eight months.
Ancillary Orders
65 I make the orders for forfeiture of the car, phone and ammunition as sought.
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