Director of Public Prosecutions v Muto

[2014] VCC 985

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01208

DIRECTOR OF PUBLIC PROSECUTIONS

v

MILVAN MUTO

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 May 2014
CASE MAY BE CITED AS:	DPP v Muto
MEDIUM NEUTRAL CITATION:	[2014] VCC 742

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Offender	Ms E. Turnbull

HIS HONOUR:

1Milvan Muto, you were found guilty by jury verdict of one charge of attempting to pervert the course of justice. On 24 July 2012, you unlawfully attempted to persuade Julie Solomon to withdraw her complaint against in pending proceedings under the Local Government Act 1989 that were alleging misconduct by you.

2At the relevant time of the offence, you were a serving councillor of greater Shepparton City Council and Solomon was the acting CEO of the Council.   Solomon was to give evidence in the proceedings at VCAT at a scheduled hearing in August 2012.

3In late February 2012, a conduct panel had authorised the secretary to the Department of Planning and Community Development to make application to VCAT alleging serious misconduct.  These proceedings were later heard together with the proceedings in which allegations of gross misconduct on your part were alleged.  These later proceedings had arisen out of complaints made by Councillor Crawford and Ms Solomon which had reached the Secretary, who then referred it to VCAT.

4These VCAT proceedings have had a long history which I need not recite here.  It is sufficient for the purposes of the sentence to note that after a number of applications and a failed appeal to the Supreme Court, the matters were relisted and culminated in orders made in June 2013 and December 2013.

5In June 2013, the tribunal members found gross misconduct on your part and ordered you to be disqualified as a councillor for four years from July 2013 and that your office be vacated.  In relation to serious misconduct, the tribunal members ordered you to be suspended from office for six months, commencing July 2013, amongst other orders.

6In September 2013, an order of stay of proceedings were made and a further stay was made in December and it meant that the substantive appeals were adjourned to February of this year and later to early June 2014 in the Supreme Court.

7Another process is worth noting. In August 2012, a search warrant was executed at your address and you were subsequently interviewed and charged with offences pursuant to the Surveillance Devices Act 1999. The connection of this matter to the current charge will be apparent in a moment. You were also charged with blackmail .

8When allegations of a breach of bail on your behalf were made, you were questioned for the first time about the Solomon allegations.  The Secretary soon thereafter succeeded in requiring you, upon application to VCAT, to take forced leave of absence until the blackmail prosecution charge was determined.  You remained on such involuntary paid leave for the next 15 months until the blackmail charge was in fact withdrawn in November 2013.  Then you were directly presented on the charge on the indictment and as of December 2013 His Honour Judge Bowman of VCAT, Vice President, lifted the remaining interim injunction which was in place.

9The request to take leave of absence was specifically linked to the blackmail charge and you had not yet been arraigned on the current indictment.  At that point, there was no order preventing you from attending council meetings and I mention this matter because it was submitted as an extra-curial punishment that I should take into account and I shall deal with this later.

10On 5 July 2012, Solomon called all councillors to inform them that she would resign her position and had accepted the role of Director of Community Development and Services with the City of Monash.

11On 17 July, you contacted her and told her you had something that she might be interested in hearing.  Solomon called you on 23 July and informed you that she was available to meet you the next day, which was the 24th.

12On the 24th at the end of a briefing session held at the council offices, you indicated to her you had something that she should listen to.  You told her you had a CD you wanted her to hear.  When it was not able to played in her office satisfactorily, you both went to your car.  You sat in the driver's seat and Solomon in the passenger's seat.

13You put on the CD and she heard a brief conversation between two councillors Crawford and Hoolihan.  Solomon was upset about the disparaging comments made about her.  You advised her that you had many hours of such recordings and showed her a number of CDs in envelopes in the glove box of the car.  You told her you were planning to release them via "Sheppy-leaks" as you “had found a loophole in the law”.  You said to her that she would neither want this conversation to be so released nor another conversation between you and her of December 2011 and that if she withdrew her complaint against you, you would ensure that the conversation was not so released.  You gave her a copy of the recording.

14She gave further evidence that about a week later, upon a message you sent to her, she called you back and during that conversation you told her that she “knew what you wanted” and that you needed to know which way she was going to go and that you needed to know by the end of the week and  that you “needed to make plans”.  She had no further dealings with you.

15You gave evidence at the trial that you had not said these things to Julie Solomon.  You asserted the conversation was to put her in a position where she would come clean, as it were, in relation to the misallocation, as you felt it, of significant funds from a government grant to a particular project.  You told the jury you played the tape so as to ask her to consider telling the truth about how the money got to a particular project, to explain to the councillors that she had made a mistake and to tell the truth.  You denied saying anything about VCAT or Sheppy-Leaks.  You denied asking her to withdraw her complaint on the promise to ensure the taped conversation was not released.  The jury accepted her evidence beyond reasonable doubt and found you guilty.

16Your evidence on a number of issues was unimpressive and in a number of aspects I must accept that this verdict was correct.

17In cross-examination, after prevaricating about Sheppy-Leaks or the electronic board on which message and adds appeared, you ultimately had to concede that in late June or early July, you had paid for an add which mentioned Sheppy-Leaks.  You then admitted that part of the conversation you had had with Solomon, as she has given in evidence, was a threat to embarrass her by putting up a sign on the board about her.  That is , what was on the tapes would come out for public consumption.

18On 6 August 2012, police executed a search warrant and  seized a number of discs, as I have said, from a car located at your home and multiple copies of the relevant conversation you played to Solomon were found to be among them.  There was no evidence as to the provenance of the tapes, excepting your assertion that you had received them in the mail, as had other people in Shepparton.

19I do not need to make any findings as to the provenance of the recordings.  I do not need to make any findings as to their legal status.  The sentence is not predicated in any part by a finding or otherwise that you had anything to do with the recording, illegal or otherwise, of the conversation in question.  I draw no adverse inference whatever against you because you had copies of those conversations.

20The evidence before me was that in any event, totally inconclusive as to this issue, and I consider that it is certainly not an aggravating factor that I  can take it into account.  In this same vein, I should state that I do not rely on the findings made by VCAT from time to time for purposes of its determination as outlined in various orders by various members and judges.  Apart from the fact that there appears currently to be no definitive findings, the matters are still subject to pending appeal and I do not in any way look to detail of your alleged behaviour as outlined in those matters as to misconduct.

21The criminality involved in the offence of which you have been found guilty cannot in my view be either seen in that context, or aggravated by those matters in any way.  

22What can be said about the background to this matter could be gleaned from the evidence of the witnesses, including your witness and yourself, as well as some of the material which was tendered on your behalf at the plea.

23There can be little doubt that your time on the council had been turbulent and divisive.  You had, by July 2012, gathered a faithful following of those who believed you were championing the interests of the people in Shepparton who had elected you in 2008 and 2012, even in the face of a number of allegations.

24You held no other employment, apart from your role as city councillor, and had taken on this function with enthusiasm, determination and a disarming approach which was combative and crusading.  This had resulted in significant antipathy from a number of quarters from within the council administration, some elements of the public and, most notably, the fourth estate, in particular the local newspaper, who appears to have embarked on a crusade of its own both derisive and punitive.

25You were a catalyst for disagreement and division.  I accept that public castigation was probably objectively balanced by support which  apparently you enjoyed amongst retailers and other sections of the community.  It would be speculative to surmise any motive for your offending.

26It was said that the eventual outcome of any withdrawal of Solomon's complaint would not have accrued any great benefit in view of the other matters before VCAT.  It was put that the nature of the benefit would have been slight and so I could take that somehow into account in amelioration.  I do not accept that proposition.

27I am not in a position to make any findings as to your motive.  Perhaps it was an act done to minimise the allegations brought against you.  Perhaps you rightly thought Solomon would make a very credible and damaging witness.  Perhaps your crusading fervour got the better of your judgement.  Perhaps the constant public castigation was beginning to wear you down and cause a totally inappropriate reaction and induced you to want to minimise the damage.  Perhaps a combination of these and more factors led you to this point.

28Some of these factors at least may explain your behaviour but not provide an excuse.  Your contact with Solomon a week before the conversation in the car shows to my satisfaction that this was  premeditated conduct on your part and not a spur of the moment lapse.  I accept that you had by 2012 established a public profile which was a significant advancement on the low point of 2007 when the Shepparton Hotel burnt down, premises in which you had a significant interest, as I will explain in a moment.

29However, this does not provide a proper or full explanation for the commission of a very serious criminal offence.  In my view, neither does the state of your mental health which I nevertheless will give weight to and take into account in your favour, which I will also come to in a moment.

30In the end, I am not persuaded that the evaluation of the criminality and culpability as to the offence is really elucidated by looking at the potential size or type of the benefit that would have flowed.  The benefit was to be small.  That does not diminish the inherent criminality, nor make better the nature of the act, because its true intent can probably never be discovered and cannot be defined by its small potential benefit.

31The offence of attempting to pervert the course of justice is one in which there can be countless gradations of gravity requiring differing punishment, from the minor to significant personal consequences.  I have endeavoured to take all relevant circumstances into account.  Perverting the course of justice strikes at the heart of its proper administration.  Public confidence and utter propriety are vital hallmarks of the administration of justice which requires the highest consideration and therefore general deterrence, denunciation of the conduct and its effective and appropriate punishment, are the central elements in this sentence.

32Where the offence is committed by a person holding public office, like you held upon election by the voters of Shepparton, the attempt to pervert the course of justice for your own ends amounts not only to abuse of the position and trust reposited in you publicly, but strikes at the integrity of public administration in its conjunction with the administration of justice.  The public confidence in the justice system will be lost unless it is made clear that such conduct will bring a prison sentence.

33I do not accept that a non-conviction disposition, as was submitted by the defence, would be appropriate or that a community based disposition would be sufficient.  I accept that the process of detection of the offence and the trial which has received publicity and has brought not just support for you but opprobrium, do constitute some deterrence and denunciation to satisfy the public interest.  However, in my view, hard as it may appear, prison sentence of relative short duration is the only answer in this case.

34I was referred to some cases in support of the submission which centred upon s.8 of the Sentencing Act, which provisions I have noted. The section requires me to have regard to all of the circumstances of the case, including the impact of the recording of the conviction on your economic and social wellbeing and your employment prospects. I have considered this impact and I will outline hereafter.

35I do not think there can be any doubt that the recording of a conviction will affect your prospects for your holding of public office and some future employment prospects.  I am cognisant of that impact and I have regarded that impact in my determination in the context of your future in the community, which has rallied around you  in your predicament.

36The cases referred to are distinguishable from your case. In these cases, the relevant outcome was derived by certain elements which do not exist in your case. A combination of pleas of guilty, the low role of general deterrence, assistance to authorities were factors in Li's case. In Robinson's case, the offences lay at the very bottom of the scale of seriousness. There had been ten years of delay and there were compelling personal circumstances which made conviction a disproportionate judgment. That disproportion is not present in your case. In any event, the court in Robinson itself said that that case was not an appropriate vehicle for guidance as to expand on the meaning of s.8.

37Candaza & Ors was quoted to me in this context, but again was a case distinguishable from yours by the respondent's youth, insight and remorse. 

38I accept that the maximum of 25 years in this offence, as explained in a number of authorities including DPP v Aidyn is of less utility than might otherwise be the case.  It is self-evident that there are many different ways in which the course of justice may be perverted.  The maximum is prescribed for the worst class of the offence, and should not ‘drive’ the sentence, as opposed to a proper assessment of the circumstances of the criminality which leads to a sentence which is properly reflective of just punishment, condemnation and the proper operation of the principle of general deterrence.

39I received a victim impact statement from Solomon, which I will not recite and which I take into account.  I exclude, as was agreed by counsel, the matters pertaining to the financial impact of relocation,but acknowledge that there was emotional distress, as evidenced in court, experienced by Ms Solomon.

40I take your personal circumstances into consideration.  These matters have led me to a sentence that is relatively short, but which nevertheless must properly and inevitably be of reclusion. 

41You are 54 years of age, the second-eldest of seven siblings.  Your 78 year old mother lives in Shepparton, as well as one of your brothers.  Your father passed away in 2010.  You have lived in Shepparton your whole life and come from a hard-working and close Italian family.  You moved out of the family home at age 22 definitely to live with Emma, your future wife, whom you married in 1988.  You have had two children, now 20 and 24 respectively.  Both of your children have moved from Shepparton to pursue their careers and study.  Your family is very supportive of you.  I accept your plight and notoriety in this case has had an inevitable impact on them.

42In May 2004, in the assessment made for purposes of a report by a forensic psychologist, you told Dr Cunningham that you and your wife were emotionally and physically estranged.  Clearly, your predicament has impacted on her.  She provided, nevertheless, a letter of support in which she attests to your generosity and availability, and to the financial difficulties which you endeavoured to overcome since 2007.  She was present in court and continues to lend you her support.

43You were educated to Year 11, and after school you obtained employment in the hospitality industry, although you sold cars for a period of time.  You have owned and run restaurants in Shepparton, businesses which were popular and successful.  In 2003-2007, you renovated and operated the Shepparton Hotel,  your wife and son having purchased it with Mr Cavasan, who gave evidence on your behalf at the plea.  You managed the hotel but in 2007, it unfortunately burned down.  The property was uninsured and you sustained significant financial loss, from which it is said you have not fully recovered, either financially or emotionally.

44The electronic board outside the pub provided some income, but in September 2012, the computer system which operated it was stolen and so income from the source was also lost, although I was not told if that was still the case thereafter or for how long.

45Your wife returned to employment as office manager with the local agricultural and animal supplies business since 2007, and in 2008, despite the recent disappointment, you decided to run for council for a role as councillor, and you were elected, and as I said re-elected in November 2012 for a further term.  You have had no other employment since 2007, or other sources of income.

46You have a prior criminal history.  In 1995, in this court at Shepparton, you were convicted of recklessly causing serious injury and intentionally or recklessly causing injury, and sentenced to four years with a minimum of two years.  The offences were committed in 1993, when you were 33 years old.  A patron of the bar upstairs from a restaurant which you operated stole a chair from your premises, and in response you followed the person and another man and struck one with an iron bar, causing serious injury.

47You served some seven months in 1995, and after a retrial on one of the charges in April 1998, you again spent time in custody until September 1998, when you were released after some 393 days in pre-sentence detention.  In 2009, you again appeared in the Shepparton Magistrates' Court, fined without conviction for an assault on a parking officer, during which you warned him not to use your details "or there'll be repercussions". 

48Although these priors are of a different nature to the current offence, they show that you have, in some past circumstance, allowed strong feelings to get the better of you, even to the extent of breaking the law by taking it into your own hands.  However, I accept that the more serious prior was over 20 years ago, and has no practical impact on my sentence.

49I take into account the evidence given by the witnesses who gave evidence at the plea on your behalf.  They consistently spoke of a generous, passionate, disarmingly direct person who is very popular and well-respected in his community.  They attested to your commitment to what you consider the best interest of the community.  You are perceived as approachable and often brutally honest, but also volatile, energetic and blunt.  You are clearly a good family person who has garnered a network of friends and supporters.

50I have read and taken into account the very many references and letters of support which were tendered on your behalf.  They invariably describe a well-intentioned person who is often strong-willed, at times arrogant and obstinate in pursuit of what you perceive to be good governance and the issues of local government administration.  I accept that these contradictory traits have caused divisiveness in how you are viewed, but that nevertheless, there is a credible and numerous number of persons who are very supportive of you and who assert that this conduct is out of character.

51It is indeed a pity that a person who has contributed and who appears to demonstrate a commitment to the welfare of his community has jeopardised his standing and ability to engage in the betterment of your constituents by conduct which is so contrary to the principles you have professed to aspire to, and for which people express their appreciation.

52I have carefully read each reference, including ones from your wife and cousin tendered after the plea, and these powerful expressions of support and affection have significantly tempered and moderated my ultimate disposition. 

53You have no history of physical or mental health issues.  In 2013, in the midst of VCAT proceedings, you were taken to your GP, acutely stressed and experiencing high blood pressure.  You were placed then on a mental health plan, in order to access psychological counselling.

54Clinical psychologists whom you visited diagnosed an adjustment disorder clearly connected to the situation and predicament in which you were currently embroiled.  You attended four sessions out of six available.  The disorder diagnosed encompassed symptoms of anxiety and acute depressed mood, symptoms which you are still experiencing.

55I adjourned the plea to enable a report to be provided, and Dr Cunningham prepared a report dated 12 May 2014.  Your symptoms were confirmed as severe.  I have taken these into account when evaluating your time in custody, and it will be more burdensome than normal due to your sleep disturbance, anxiety, depression, irritability and fatigue.  This aspect, in my view, is situational, and although relevant in considering this issue, is common and only of slight ameliorating value.

56More importantly, it was submitted that Mr Cunningham was of the opinion that you were under significant stress during the period of the offence, leading you to “not think straight” and being “desperate” with regard to council matters.

57Information from your wife indicated you were currently worse than previously.  Rather incongruously, she added that you were "emotionally shattered" after receiving the tapes of the councillor's meetings, recordings which however you then proceeded to use in the commission of the offence.

58Mr Cunningham extends the cause of your adjustment disorder back to the loss of the hotel, a disorder only aggravated by the problems you encountered as a councillor, a disorder which, according to him, "burdens your mental state through clinically severe symptoms of anxiety and depression" and would have contributed to a highly agitated, anxious and depressed mental state at the time of the offences.  He has no doubt a term of reclusion would weigh more heavily on you than on an individual without the disorder.

59The latter is an obvious statement which I accept and take into account to moderate the sentence.  The opinion about the effect of the disorder at the time of the offences does appear to me to be contrary to the evidence of the material tendered in support of your plea, and even to the evidence of your wife, who in the letter states she was totally unaware of any psychological issues or your worries until the psychologist's intervention in 2013.  Despite the loss of the hotel in 2007, you were able to contest an election, become an active and forceful councillor. 

60Although, on balance, I accept that this symptomology may have affected your conduct, especially in a situation of conflict and criticism, finding that such a condition has a causative link to the offending so as to attract the Verdins application of well-known principles as to mental condition, in my view is problematic and does not persuade me that your moral culpability is greatly diminished in the commission of this offence.

61Nevertheless, I accept your incarceration will be probably harsher than it would normally be, because of your anxiety and depressive mood.  I accept that you did endure extra curial punishment, including over a year under mandatory leave of absence.  I accept your prospects of rehabilitation are probably reasonable, and that your risk of re-offending is low.  I accept that it is possible your future contribution as a councillor may be impacted by the sentence. I have taken all these matters into account.

62I was finally told, by email and again this morning, that as a result of Dr Cunningham's report, your GP referred you to a psychiatrist with a view to prescribing medication.  I am confident that the correctional authorities will respond to my notations attached to the sentence, that you should immediately be properly and fully assessed for mental health assistance.  I consider in this case that it is the nature of the penalty which is crucial, and that all the matters I have referred to allow for what is, in my view, a lenient disposition but one which must be of imprisonment.

63On the charge of attempting to pervert the course of justice, you are sentenced to eight months' imprisonment.

64Are there any other ancillary orders?

65MR D'ARCY:  No, Your Honour. 

66HIS HONOUR:  Are there any pre-sentence detention days?

67MR D'ARCY:  No, Your Honour. 

68HIS HONOUR:  I will remain in court if Mr Muto's family wishes to exchange some words with him before he is removed.

69MS TURNBULL:  May I assist in that process?

70HIS HONOUR:  Certainly.  You can take Mr Muto down.  Sine die.

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