Director of Public Prosecutions v Nielsen

[2018] VCC 1602

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-01502

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON NIELSEN

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Geelong
DATE OF HEARING:	27 September 2018
DATE OF SENTENCE:	1 October 2018
CASE MAY BE CITED AS:	DPP v Nielsen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1602

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of guilty; attempt to pervert the course of justice; producing false medical certificate to Magistrates’ Court to regain license; lying on oath; detrimental impact of publicity on employment.

Legislation Cited:            Sentencing Act (Vic) 1991
Sentence:  Community Correction Order for a period of 15 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Solicitor for the Office of Public Prosecutions
For the Accused	Ms A. Burnnard	Criminal Lawyers Geelong

HER HONOUR: 

1Jason Nielsen, you have pleaded guilty to a charge of attempting to pervert the course of justice. 

2The background to this offence was that in April 2017, you had appeared before the Geelong Magistrates' Court on some driving related charges, including failing an oral fluid drug test within three hours of driving.  As a result, your driver's licence had been cancelled with a three month disqualification period, and you needed to apply to a Magistrate to be re-licensed.  As part of that application, you were required to prove that you had not used illegal drugs recently, by producing proof that you had passed a recent drug screen.

3On 30 August last year, in an application to be re-licensed before a judicial registrar of the Magistrates' Court, you gave evidence on oath in which, when asked for a drug screen, you said that you had a medical certificate from a doctor at the Ryrie Street medical clinic, that Barwon Health had sent you there to get your test done. You said that you could bring more paperwork if required.  You produced a document purporting to be a medical certificate by a Dr Nik Kozlov, the certificate stating that you had passed a drug screening test on 18 August 2017.

4The judicial registrar questioned the authenticity of that document and allowed you to leave, to obtain the proper paperwork and return to court that day with it.  You did not return before the court ceased sitting, so your application was struck out.  In the meantime, you had gone that day for a drug screen test, but its result was not available that day.  You returned to the court later that day, and on finding that the matter had been struck out, you lodged another application to have your licence restored.

5The incident was reported to police.  After listening to the recording of the evidence you had given, they took the document you had produced to Dr Kozlov, who told them that this was not a document he had provided, that you had not attended his clinic on 18 August 2017, and had never attended the clinic for a drug screen test, but he had provided you with an unrelated medical certificate on 13 August 2017.  You were arrested and interviewed by police on 22 September 2017, and after legal advice, mainly answered “no comment”, but when asked what you had gone to court for, you said, "Just grab my licence back".  You were charged and immediately bailed.  

6The following week you apparently returned to the court on your further application to have your licence restored, produced a fresh drug screen test result which was genuine, and regained your licence. 

7When the matter of the false evidence you had given was listed for a committal mention, it resolved with you indicating a plea of guilty to the current charge. 

8I accept that you indicated a plea of guilty at the earliest opportunity, and you are entitled to some leniency in your sentence for that.  An early plea of guilty has the utilitarian value of saving the time and cost of disputed hearings.  It also indicates that you accept responsibility for your offending, and in your case I accept that it also reflects genuine remorse.  There is some other evidence of your remorse, in what you have told other people.  After I impose sentence, I shall tell you what your sentence would have been, if you had been found guilty after a trial on this charge - that is, if you had not pleaded guilty.

9I must assess the objective seriousness of this offence and subjectively your role in it.  The maximum penalty of 25 years' imprisonment is the second highest possible penalty in this State, and that alone objectively shows how seriously offences of this nature are regarded by Parliament, on behalf of the community.  The justice system deals every day with a multitude of cases of different types and through different processes.  It is fundamental to our system of law and government, that the community can have confidence that the justice system is operating fairly and equally to all, and where courts make decisions, that they can be relied upon.

10It strikes at the heart of this system and community confidence in it, if there is an attempt to mislead a court, or to provide false evidence, as that could well lead to an incorrect decision.  It could lead to a person obtaining a legal result through dishonesty, and so pervert the proper course of justice.

11When it comes to licencing of drivers and how they can regain those licences after committing certain driving offences, there are systems established that must be complied with.  That is why what might seem like a relatively mundane deception, is taken so seriously if it amounts to an attempt to pervert the course of justice.  It is why this charge carries such a high maximum penalty and is viewed so seriously by law enforcement agencies and the courts.

12In your case, you attempted to deceive the Magistrates' Court in two ways.  First, you prepared a false document and provided it to the court, falsely representing it to be a certificate from Dr Kozlov.  Secondly, you went on oath and said that you had obtained this document from your doctor, after having a drug screen test.  Although this was only one incident and as your counsel said, there was only a single false document created, it is clear that you planned this at least a little ahead of attending court, as you had altered a document previously obtained from Dr Kozlov.

13I am told that you did this out of panic, and because you did not know what type of document to produce.  Altering a completely unconnected document from your doctor in advance of going to court, does not in my view, seem consistent with panic.  As you had apparently already attended court earlier in August, to regain your licence, and on being called into the witness box, were told that you needed to have evidence that a drug screen test, I find it hard to believe that you did not think to ask at that stage, whether while in the witness box, or of someone in the court or at the court's desk afterwards, how to go about getting a drug screen test, or what type of document was required.  It is now conceded that that would have been easy to ask for, and you did not ask for it.

14Having said this, there is nothing to indicate that you created the false document to cover up that you were still using drugs at that stage, and therefore creating it because you knew you would not pass a drug screen test.  I take into account that you made a plan by creating a false document, and followed through by going to the Magistrates' Court, going on oath and producing that document as being from a doctor, but that this was the entirety of the deception, and that from there on, you went about genuinely obtaining the evidence you would need to regain your licence.

15I accept that this instance was not of a highly sophisticated nature, and also that unlike many instances where this crime can arise, it did not involve any other person, and was constituted purely by dishonesty, without any intimidation or threatened or actual violence.  I assess it as being towards the top of the low range on the spectrum of possible instances of this crime.

16The most important sentencing purpose in this case must be general deterrence.  That means that the sentence must send a message to people tempted to deceive courts, or any part of the justice system, that they can expect serious punishment.  Also of importance in my view, is denunciation, as it is the community's confidence in the justice system which is at risk, from such offending. 

17I turn now to your personal circumstances.

18You are now aged 38 and were 37 at the time of this offending.  I am told that you grew up in the Geelong area and have preferred to remain living and working in this area, where much of your family also live.  You left school after Year 9 to obtain work.  You started an apprenticeship which you did not complete, but you appear to have worked consistently since your late teens, for sustained periods at different jobs. 

19I am told that for the last nine years, you have run your own business of fitness training, and also have taken part time employment in gyms as part of your fitness industry career.  You have also supplemented your income through warehouse work, and that includes that you were taken on for temporary pre-Christmas work last November, but have now been employed directly on an ongoing basis, although still part time, in that role. 

20I am told that you formed a relationship in your teens, which lasted many years[1], and although it subsequently ended, you still have contact and a significant role in the lives of your two teenage daughters.  You have been in another long term relationship, although not living together and your partner was in court to support you.  You are also still in close contact with your parents, indeed living with your mother and step-father. 

[1] Amended after Defence Counsel advised there was no marriage.

21I am told that as a result of publicity about this offence, you have suffered not only embarrassment amongst family and friends, but some detriment to your business and employment prospects.  I am told that you have applied for several jobs in the fitness industry over the last year, and were told that you failed to obtain those jobs because of this charge pending before the court.  I do not know whether that was as a result of uncertainty about whether you would be free to undertake such work, or whether the disgrace of this charge will result in ongoing adverse views being taken about employing you. 

22I am told that as a result of this publicity, your own fitness business has also suffered significantly, and that you have many fewer clients for your fitness training, than you had before this became known.

23I have taken into account that there has been some detrimental impact, or punishment for you beyond what a court would impose, as a result of this charge.  That is what lawyers call “extra curial punishment”.  I have moderated your sentence a little for this.

24I have been provided with references from two people who have known you for several years, and who say that this offence was out of character for you, and that you are generally well regarded. You are known to be supportive of other people, both in your paid work and through contributing voluntarily to support people struggling with body image and fitness issues.  Both references talk of you having a good and hard earned reputation, and that you have shown embarrassment and regret, in discussing this matter with them.

25I have also been provided with a psychological report from Ms Gina Cidoni, who assessed you earlier this year.  On psychological testing, she found you to be in the average range of intelligence.  Personality testing she qualified, as requiring interpretation with caution, but she concluded that you have a tendency to be impulsive, and not think out plans before executing them, and to have a low frustration tolerance, which can cause you to behave recklessly or irresponsibly.    Ms Cidoni sets out details of your background, which you told her, including a history of using addictive substances, although you minimised your dependency.

26You said you have used cannabis since the age of 19, and I am told that it is that substance for which you failed the oral fluid test[2], after driving in April last year, that incident leading to your requiring a drug screen test to be re-licenced.  You apparently also used methylamphetamine from age 21, culminating in an admission to Barwon Health for rehabilitation a number of years ago.  You told Ms Cidoni that you still use this drug occasionally.  It was also noted that you battled depression for about two years, about five years ago. You saw a psychologist and were prescribed anti-depressant medication but you did not like the effects.  Since that time you have tried to manage your symptoms through exercise.

[2] After sentence, Defence Counsel informed court test showed both Cannabis and Ice.

27Ms Cidoni suspected that you might be suffering an attention deficit hyperactivity disorder, but specified that no clear diagnosis could be made, unless you withdraw completely from drug abuse.  She did note that you expressed regret for this offending, understand the seriousness of it, and are distressed about its impact on you and your family. 

28It is not suggested through Ms Cidoni's opinion, nor by your counsel, that you suffer from any mental health disorder or impairment of understanding, which could be a legal basis to reduce your sentence, through lowered culpability or any other reason.

29Although you have been before courts before, I regard your criminal history as modest, and not relevant to the current offending, except in so far as the licence disqualification imposed last year led to the current offence.  In particular, you have no prior offences of dishonesty.  I accept that your criminal record does not reflect entrenched criminal behaviour, and although I note that while not strictly prior offences, it is of concern that according to what you told Ms Cidoni, and indeed the instructions you gave your counsel, you have been using illicit drugs over many years, there is only in fact, one charge for that type of offending. That was in October 2013. 

30I do note the continued use of illegal drugs may well contribute to further poor decision making, and most strongly recommend that you address that underlying propensity to use such drugs. 

31As I have already said, I accept that you have a sustained work history since your teens, and that you have generally been leading a responsible life in the community, with supportive family relationships, building a good reputation with clients and friends, and taking a responsible role in the upbringing of your daughters.  I accept that you have been genuinely embarrassed by facing this charge, not only with your daughters and mother, but also with clients and friends, and have experienced some impact on your job prospects and business.

32I am satisfied that these consequences together with facing a very real prospect of imprisonment, will have been a salutary lesson for you.  As a result I do not regard there as being a great need for specific deterrence, that is to send the message to you through this sentence, that you must not offend again.  However, there is a risk of you re-offending through any continued use of illegal drugs.  If you can address that behaviour and resist using drugs, I consider that your prospects of re-establishing yourself as a responsible member of the community are good.

33I have taken into account the submissions of the prosecution, that the seriousness of offending of this nature calls for a sentence that involves some immediate imprisonment, but that that could be in combination with a community correction order which would necessarily mean that the period of imprisonment did not exceed 12 months.

34Your counsel submitted that in all of the circumstances, a community correction order alone would be sufficient. 

35The law requires that imprisonment not be imposed if any less severe sentence would be adequate, under all sentencing principles.  I ordered a pre-sentence report to assess your suitability for a CCO, whether alone or in combination with an initial term of imprisonment.  You have been assessed as suitable for such an order.  You were assessed as at moderate risk of re-offending on the assessment tool used by Community Corrections.  I infer that that is because of your admitted drug use.

36Taking all of these circumstances into account, I have decided that a CCO would sufficiently meet all sentencing purposes and principles in this case.  That is not to underrate the serious nature of the offence of attempting to pervert the course of justice, or the manner in which you committed this offence.  However, for the reasons I have outlined, I consider that a sentence short of imprisonment would meet all sentencing requirements in this case.  Would you stand up now, please.

37Jason Nielsen, on the charge of attempting to pervert the course of justice, you are convicted and sentenced to be placed on a community corrections order to last for 15 months from today.

38The conditions are that you must undertake 150 hours of unpaid community work over that period; attend as directed for assessment and treatment for drug abuse; and be subject to supervision.  I considered imposing a term that you attend as directed for assessment and treatment, directed to your mental health, but that was not recommended in the assessment and given that I suspect that you would have been sent for an assessment that found that you did not require particular immediate treatment, it is something to leave to you to discuss with your doctor, if you feel you need any such treatment.

39In addition to those conditions, that is the 150 hours of unpaid community work, attend as directed for assessment and treatment for drug abuse and supervision, all usual terms of a CCO apply.  I know they were explained to you but I will summarise them again briefly, for you now. 

40The first is that you must report within two business days of today.  That will be by 4 pm this Wednesday, at the Community Corrections office which will be on the CCO produced, but I understand it is at Level 5, 30A Little Malop Street, Geelong.  Throughout the 15 months of the CCO you must advise Community Corrections officers of any change of address of where you are living, or where you are working, and you must do that within two business days of such a change occurring.  You must obey all lawful instructions and directions of Community Corrections officers.  You must attend where or allow them to attend on you, as they direct.  You must not leave the State of Victoria without prior permission of your Community Corrections office and, most importantly, you must commit no further offence that could carry a possible sentence of imprisonment.  Any offence of dishonesty, but also many drug charges, and many driving offences, carry a possible sentence of imprisonment, and they, if you committed any of those, would amount to a breach of the CCO. 

41If you were to breach the CCO, that is an offence in itself for which the penalty is a maximum of three months' imprisonment, whether that is by further offending or non-compliance with other terms and conditions. As well as being liable to be charged with the offence of contravening a CCO, you could be brought back to court, probably in front of me, and depending on the circumstances of the contravention and on how much of the order had been satisfactorily completed, you could be re-sentenced on the current charge. 

42Now, do you understand the terms and conditions of the CCO?

43ACCUSED:  Yes, Your Honour.

44HER HONOUR:  Do you agree to comply?

45ACCUSED:  Yes, Your Honour.

46HER HONOUR:  All right.  That will be prepared shortly, the CCO for you to sign and for me to sign. 

47I state pursuant to s.6AAA of the Sentencing Act, that if you had not pleaded guilty but been found guilty of this charge after a trial, I would have imposed a term of imprisonment of 18 months with a non-parole period of ten months.

48Now the prosecution also sought an order for the taking of a forensic sample from you, to enable your DNA to be placed on the national database.  That was opposed, on the basis that this offence did not have any elements of disguising of your identity or the need to be able to discover your identity through DNA.  I have considered whether or not to make the order.  I have ultimately decided however, that the seriousness of the nature of this and circumstances of this offending, including the creating of the false document, do warrant that order being made. 

49I will limit it to a scraping from the mouth, rather than blood sample.  That means – and you will have a copy of this on the order - you wait four weeks after today, then you have got a four week interval during which you are to attend at a police station, to have the sample taken.  I am limiting it to what they call a scraping from the mouth, but it is a swab rubbed against the inside of your cheek and if you do not resist, it is not intrusive and not painful.  I warn you however, as I must, that if you resist the taking of that sample, police can use reasonable force to do so.  All right.  Take a seat while the orders are prepared.

50MS BURNNARD:  May it please the court.

51HER HONOUR:  Have I covered everything?  There were no other orders sought?

52MR MOORE:  Yes, I believe so, Your Honour.

53HER HONOUR:  All right.

54MS BURNNARD:  The only other matter, Your Honour, is that Your Honour referred to Mr Nielsen's marriage.  I believe the submission I made was that his relationship which bore the daughters, was a long term relationship but he was never married.  Not much turns on it.

55HER HONOUR:  I read it wrongly.  All right.  In revising it, I can change the wording there.  Apparently the printer here is not working, so my associate is going to have to walk quite a way to another printer. 

56MR MOORE:  Your Honour, I do not know whether it would be appropriate to mention another matter, just very briefly, Your Honour.  Or would you prefer to dispose of this matter?

57HER HONOUR:  I think I would probably prefer to complete this matter.

58MR MOORE:  Certainly, Your Honour.

59HER HONOUR:  I am sorry about the time problem, but there is ‑ ‑ ‑

60MR MOORE:  No, that is all right.

61HER HONOUR:  Or what I can say, is that Mr Nielsen can be released from the dock and come and sit behind his lawyer, awaiting the paper work.

62MS BURNNARD:  Thank you, Your Honour.

63HER HONOUR:  Having done that, I do not mind you now mentioning another matter, Mr Moore.

64MR MOORE:  Thank you, Your Honour.

65(At this stage the court proceeded with another matter.)

66HER HONOUR:  Yes.  I think that is in order.  That CCO, if both Mr Moore and Ms Burnnard have a look at it, to check it reflects what I said.

67MS BURNNARD:  Yes, Your Honour, that is right.

68HER HONOUR:  All right.  Well, with my associate will you ask Mr Nielsen to read that through, check it yourself, Mr Nielsen and would you sign where indicated?  All right, I have signed that order and there will be copies made, a copy for you Mr Nielsen, as well as a copy for the prosecution.  And you are to report by 4 o'clock Wednesday.

69ACCUSED:  Yes.

70HER HONOUR:  I hope I do not see you back in front of me.  All right.  I have signed the other order also.  The forensic sample order.  All right, I think you will have to wait, Mr Nielsen, while copies are made.  The equipment does not seem to be holding up.  All right.  You can be excused, Ms Burnnard, unless you want to wait with your client.  You have got another matter, your other matter is at 2 o'clock.

71MS BURNNARD:  At 2 o'clock, yes, Your Honour.  I will certainly wait with Mr Nielsen for the material.

72HER HONOUR:  All right.  I will have my associate go and copy them as soon as you can, please? 

(At this stage the court proceeded with another matter.)

73HER HONOUR:  Yes.

74MS BURNNARD:  Your Honour, I apologise.  If I might raise a matter, just in the interests of absolute transparency.

75HER HONOUR:  Yes.

76MS BURNNARD:  In Your Honour's sentencing remarks, Your Honour noted that cannabis was the drug which caused Mr Nielsen to fail the oral fluid test ‑ ‑ ‑

77HER HONOUR:  I think you told me that?

78MS BURNNARD:  Yes.  My notes that I have just checked, have said both cannabis and ice and I cannot remember if I said both drugs, because I do not have a note obviously, of how the plea came out.

79HER HONOUR:  No, and there is no transcript of it.  I only had noted cannabis at the time.  Thank you for correcting that, if it needs correction.  It does not change my ultimate sentence, but I think there is even more need for Mr Nielsen to address his background of using drugs. 

80MS BURNNARD:  That is right.  I just was not sure how I had put what I said, and thought it best to be absolutely clear about it.

81HER HONOUR:  I remember a description of you saying that after being intercepted by police he went and smoked cannabis.

82MS BURNNARD:  Yes.

83HER HONOUR:  Then had the test within the three hours.  That is how I think I had recalled it.  I do not know that my notes are quite that specific.  All right.  Thank you.  Have we got the copies done?

84MS BURNNARD:  We have those.  Yes.

85HER HONOUR:  All right.  You can be excused, Ms Burnnard.

86MS BURNNARD:  May it please Your Honour. 

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