Director of Public Prosecutions v North
[2022] VCC 1773
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00581
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TOM NORTH |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2022 | |
DATE OF SENTENCE: | 14 October 2022 | |
CASE MAY BE CITED AS: | DPP v North | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1773 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempting to Pervert the Course of Justice
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Hill v The Queen [2021] VSCA 349
Sentence: Convicted and sentenced to a total effective sentence of 5 months imprisonment followed by a Community Corrections Order of 12 months.
Section 6AAA declaration: Conviction and total effective sentence of 18 months imprisonment with a non-parole period of 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Vaughan | Office of Public Prosecutions |
| For the Accused | Ms I. Siriwardana | Victoria Legal Aid |
HER HONOUR:
1Tom North, you have pleaded guilty to once charge of attempting to pervert the course of justice.
2You committed this offence in August 2021. On 16 July 2021 you had been charged with one charge of using a carriage service to menace, in circumstances of family violence. You had sent an abusive email to your sister-in-law.
3You were deemed suitable for diversion, and the matter was heard at the Werribee Magistrates' Court. You were representing yourself. Diversion was granted, with you to do a number of things before the process was completed. The magistrate ordered that you were to:
(a) First, donate $500 to Magistrates' Court Fund and to provide the court a receipt of the payment from the organisation or provide money order or a bank cheque to the court made payable to a specific organisation. And you were to do that before 17 June 2019. You did not actually pay that sum;
(b) Write a letter of gratitude or apology to the informant in this case, who was Constable Andrew Wallis and you were to provide a copy of that letter to the court before 17 June 2019.
(c) You are to undertake alcohol counselling or treatment and provide proof of attendance and participation to the court before 17 June 2019.
(d) You were to continue treatment with your general practitioner and provide proof of attendance and participation to the court before 17 June 2019.
(e) And you were to be of good behaviour for the period of the plan which was until 17 June 2019.
4After many adjournments your matter was listed in the Werribee Magistrates' Court on 16 August 2021, with the hearing via Webex, due to the COVID-19 lockdown which was in place at the time.
5
On Friday 13 August 2021 at 8.33 am you emailed an organisation called IPC Health, to request a letter confirming that you had attended for alcohol counselling at Altona Meadows. At 10.19 am an employee of that organisation, Ms Anderson, responded by sending a letter to your email account. That letter, which was on IPC Health letterhead confirmed your name, date of birth, and stated that you had attended once for counselling, on 17 June 2021. I note that the year set out by
Ms Anderson was wrong, and that it is now confirmed that you attended on
17 June 2019. Ms Anderson went on to say in the letter:
'The client was referred to IPC Health Drug and Alcohol Services on 6 June 2021 by his GP for issues with alcohol/anxiety and depression. The client was seen for one session only on the
17 June 2021. A second counselling session was booked for
10 July 2021 where the counsellor was sick. The counsellor then called the client on two further occasions to make contact without success and the file was closed.'
6
You created a version of that letter some time after receiving it and sending the created version to the Werribee Magistrates’ Court at some time before your hearing on 16 August 2021. The version created by you purported to be from
Ms Anderson stated that you had attended for an intake assessment on the
17 June 2019, a session on 24 June 2019 when a self-assessment was completed, and for two sessions of counselling, one on 1 July and the next on 8 July 2019, and that the file was then closed.
7The letter you created was not on letterhead.
8At 10.42 am on Monday, 16 August 2021, the magistrate who was to hear your matter asked for the authenticity of the letter you had provided to be checked. This was done and it was found to be not the letter that Ms Anderson had written.
9Your matter was called on not long after 11.00 am on 16 August 2021. In the course of the hearing the learned magistrate asked you where the letter had come from. You replied, “That came from IPC Health, but as I recall I had four sessions with them.”
10Your matter was adjourned until after lunch so that the original letter could be provided. You sent the letter via email at 11.10 am to the co-ordinator. In the email you said:
“FYI re: your case number. This is the unamended letter I received from IPC Health. I amended the dates to 2019 as that was when the counselling took place, and amended the sessions according to my recollections of attending four sessions.”
11When your matter was called on again after lunch you confirmed that you had sent the original letter to the court. Your matter was taken out of the diversion list and her Honour recused herself from further involvement.
12You attended the Werribee Police Station at 10.00 am on 26 August 2021 for interview. You told the police:
'What I recalled at the time, I thought I had attended what was necessary in terms of the counselling, and my view was I had gone to four sessions…but I think I'm wrong about that now. I certainly attended at least one and I believe what IPC Health provided in the document was all correct with the exception of one thing, just the year. The year was 2019.'
'I shouldn’t have done any of that, but I should have asked the magistrate for more time',
'My intention was to complete the diversion order',
'My intention was to become in the clear, legally…which was dishonest and, yeah, obviously very wrong.'
13You were charged on summons. Your matter resolved at the earliest opportunity, at a committal mention on 13 April 2022.
Gravity of Offending
14Your offending was directed at concluding your diversion proceeding, without having actually completed the requirements imposed by the court. You sought to obtain the best outcome for yourself on your criminal charge, by deceiving the court. This offending was not a simple mistake or mis-step. You appear to have amended the letter by Ms Anderson, adding dates and making it appear that you had completed counselling. You then sent the letter to the court, and when given the opportunity to admit you had added the dates, you persisted in your attempted deceit, only accepting changing the year from 2021 to 2019.
15Whilst you now say that you were intoxicated when you amended and sent the letter, this is not something you told the police. You were not drunk on the Monday when you appeared before the magistrate and attempted to perpetuate the deception. Even if you were intoxicated when you received and amended the letter on Friday[1] (accepting that is when you did so) you were sober when you committed the offence on the Monday. Furthermore, as accepted by your lawyer, there was another instance of you committing an offence whilst substance affected and this was the offence that led to the diversion hearing in the first place, and that offence had been committed after you had been drinking.
[1]Defence submissions dated 6 October 2022, [4]b
16In a case with some similarity to yours, the Court of Appeal said of this type of offending,[2] and I quote,
'Attempting to pervert the course of justice is an innately serious offence. Any attempt to pervert the course of justice must be viewed seriously and denounced appropriately. This is especially so in a case such as the present where the attempt takes the form of seeking to mislead a court for personal advantage. Moreover, the applicant's offending was not spontaneous. It was a calculated attempt to deceive the magistrate, and the police, in the interests of achieving a favourable sentencing outcome.'
[2]Hill v The Queen [2021] VSCA 349, [30].
17This charge carries a maximum penalty of 25 years' imprisonment. Offending like yours has the capacity to interfere with the administration of justice, both by having the potential to give you an outcome which you had not earned, and by slowing the course of justice which relies on the accuracy of information provided.
18Your offending was not low level offending. At the same time, your offending was not of the morse serious nature such as that involving others to carry out the attempted deception, or threats to a witness, violence, or bribery.
19As your lawyer said, by this offending you caused what would have been a very good outcome for yourself on the initial charge to lead to serious consequences, in this court.
Personal Circumstances
20You are now 40 years old. You were raised in Melbourne. Your father was abusive towards your mother and brothers, with dictatorial bullying behaviour, outbursts of violence, and controlling behaviour towards your mother whom he attempted to isolate and disempower.
21You describe that there was always a sense of unease in your home, waiting for your father to strike out in one way or another. Whilst less physically violent towards you than towards your brother, your rather was verbally harsh with you.
22Your mother escaped from this abuse when you were eight, but you and your older brothers remained in your father's home, apparently so that you could continue at the same school. Your mother has since remarried and is in a settled relationship. You and she still have a good relationship, and are in touch regularly.
23You report that after your mother moved out, when you were around nine years old, your father would sexually abuse you. He would touch your genitals while you were asleep, and when you woke up he would leave.
24Your schooling was positive. You finished Year 12 and did a TAFE course in computing which you completed when you were 20. You also have completed certificates in business administration and customer contact. You have been employed in customer service, data entry, computing companies and a shipping company. It appears that your jobs have ceased generally because they were short term contracts, not due to your misbehaviour.
25You report that you started smoking cannabis at age 17, with periods of use and then abstinence. In your 20s you were smoking daily, as the memories of your father abuse were making you stressed and anxious. You report ceasing regular use of cannabis since middle of last year.
26In your 20s you began drinking socially, but this escalated after you told your family about the abuse, in 2011, when you were 29. Your brothers did not believe you, and your father rejected your accusations. Your mother does believe you. Since then your relationship with your brothers has been poor, and you have no relationship with your father.
27You reported the abuse to police, but were told that charges would not be able to be pursued.
28You report drinking significant amounts in the years between 2011 and 2021, with some periods of abstinence, which you could not maintain. You report that you have now been abstinent from alcohol since late 2021. You understand you need support to remain abstinent. Your drinking has in the past, led to you becoming homeless more than once, and it has contributed to your criminal offending.
29You say that you can now see that you were abusing alcohol and cannabis as a way to deal with your mental distress about the abuse, and your brothers and fathers' response.
30You have a close group of friends, but find trusting others difficult. You presently live in a share house in Point Cook, which is a stable situation, but you will lose that accommodation if you are incarcerated, as you will not be able to pay the rent.
31As to your physical health, your drinking has made you unwell from time to time, and you have also had some abdominal pain which may be psychosomatic. You have no present medial issues.
32You are musical, playing the piano and the guitar. You have played in a band and report recording albums with them. You have travelled and before the pandemic you volunteered at a Salvation Army store.
33
I was provided with a letter from Mercy Mental Health in Werribee. On
5 August 2021 you had been taken to the emergency department for evaluation under the Mental Health Act after you had sent what looked like a suicide note to a police officer. This date coincides with another abusive email being sent to your sister in law. You were assessed and then referred for assistance with the hospital outreach post-suicide engagement team. You accepted and received support for three months from that team, but then felt that you were alright, and you did not pursue further mental health assistance.
34The offending for which I will sentence you occurred around within a fortnight of that assessment at Mercy Mental Health. It appears to me that you were at a very low point in your life.
35A report by Psychologist, Ms Mynard was tendered on your behalf. You reported symptoms which Ms Mynard considered gave rise to a diagnosis of PTSD, based on the trauma you experienced as a child. She noted that you reported:
a. Tightness of chest and breathing and escalated heart rate when thinking about your father's abuse, as well as nausea and abdominal pains;
b. Panic attacks;
c. Intrusive thoughts about the abuse, including nightmares;
d. A feeling of loss of control and high anxiety, and an experience of almost constant nervousness and fear;
e. Hyper-arousal which only dissipated with prescription medication or while you were abusing alcohol or cannabis;
f. Depression, lack of motivation, difficulty in making decisions, lack of joy and a lack of interest in normal activities;
g. And a pervading sense of feeling like a failure, that there is something wrong with you and you were ashamed and embarrassed about the abuse.
36You reported avoiding dealing with the emotional trauma caused by the abuse for many years. You say that you can now understand that you do need to address these issues, and I was told you have an appointment in late November to commence the trauma focussed counselling recommended by Ms Mynard, and that you are on a wait-list for CASA assistance, although that is a long wait list.
37I'll turn now to the other factors relevant to sentencing.
Plea of Guilty & Remorse
38As I have previously noted, your matter resolve at the earliest reasonable stage, at a committal mention. Your early plea of guilty gives rise to a significant mitigation of sentence. This is particularly in reference to the real utilitarian benefits of your plea, which has facilitated the administration of justice. The mitigation afforded by reason of your plea is all the greater in the context of the pandemic, and its effect on the operation of the courts. Furthermore you entered that plea in the knowledge that you could face a term of imprisonment, in circumstances where it would be your first time in custody, and where the pandemic has made to the conditions in custody more difficult.
39As to remorse, I accept that your plea of guilty is an indicator of some remorse. You did express a degree of remorse to the police, and to Ms Mynard, describing your behaviour as stupid and acknowledging that it was you alone who have put yourself in this position.
40It is concerning that you maintained to Ms Mynard that you had been to the four counselling sessions in 2019, and that you minimised what you had actually done to change the letter, [3] but this is not a factor in aggravation, rather it is illustrative of your self-serving approach.
[3]Psychological Report of Ms Mynard, clinical psychologist, dated 24 July 2022 [50], [54], [55]
Prospects of Rehabilitation
41Ms Mynard considered that your prospects were very good, in light of your ability to self-reflect and that you do have the capacity for insight, taking personal responsibility and self-improvement. She observed that if you take part in therapy this will improve your prospects of rehabilitation. The CCO assessment that I ordered assessed your risk of reoffending as high.
42You have prior court matters. The matters of obtaining financial advantage by deception and attempted obtaining property by deception in 2014 are relevant because they illustrate you acting in a dishonest way to benefit yourself. The matter in 2021 is relevant because you say you committed that offence whilst alcohol affected. You are not being sentenced again for those matters, they are relevant to your prospects of rehabilitation.
43I assess your prospects of rehabilitation as reasonable. You have much going for you, you are intelligent, you have a good work history and you understand the need to address your issues. The difficulty that you face is that addressing past trauma is hard, it takes work and it can trigger negative coping strategies such as the alcohol abuse you have turned to in the past. Even absent that foundational trauma, alcoholism is a lifelong burden and it requires constant vigilance to remain sober.
44The sentence I will impose does give weight to specific deterrence, that means that the sentence is intended, amongst other things, to deter you from committing further offences in future.
General Deterrence
45Your counsel acknowledged that general deterrence is a significant factor in sentencing for the offence of attempting to pervert the course of justice, but she submitted that your post-traumatic stress disorder and the reasons for it should lead to less weight being given to general deterrence.
46I will moderate general deterrence to a small degree for this reason. I accept that your childhood trauma has had a profound effect on your mental health your quality of life, and that you are not an appropriate vehicle for the full weight of general deterrence. Having said that, your situation is far from that where general deterrence would be given no weight.
Current Sentencing Practice
47I was referred to the Court of Appeal decision of Hill v The Queen [2021] VSCA 349. In that case Ms Hill had produced a false letter of employment, on her plea hearing in a Magistrates' Court. She was seeking diversion. The police discovered that the letter was false. Ms Hill had prior convictions for dishonesty. She had had a difficult childhood with family violence, suffered what was described as a “serious and traumatic experience while she was a teen”, and after leaving school during Year 12 fell into drug use. She continued to abuse drugs, and was involved in relationships where she was abused. She had made no real effort to address her drug use, and she was reluctant to engage with mental health treatment. Ms Hill was sentenced to six months' imprisonment to be followed by an 18 month CCO.
48A real point of difference between you and Ms Hill is that since this offending you have engaged in counselling to address your substance abuse.
49That case of Hill also referred to other cases, where longer periods of imprisonment had been imposed. The Court said that the sentence imposed on Ms Hill was well within the range of proper sentences for that case.
50In the hearing I noted that some sentences imposed in the County Court for similar conduct to yours had led to a non-custodial sentence, as well as sentences that did involve prison.
51Sentences imposing other cases are a relevant matter to consider, but they do not set limits or prescribe the sentence to be imposed in your case. Each case is to be decided on its own facts. A factor relevant to assessing the gravity of your offending is that you attempted to deceive the court with this letter, in order to obtain a beneficial outcome on your criminal charge. This is relevantly different to seeking to get an adjournment, or providing a certificate during ongoing supervision such as in the Drug Court. Furthermore you do have prior findings of guilt for dishonesty offences.
Other Sentencing Principles and Purposes
52Weight must also be given to the sentencing principles of just punishment and denunciation of your conduct. What you did was clearly wrong, and the sentence I will impose is intended to punish you, amongst other purposes. The sentence must also demonstrate that this conduct is wrong, that it had the capacity to bring about a miscarriage of justice in your hearing. As I have already said, conduct such as yours can undermine faith in the court processes and outcomes, which rely on accurate information being provided. Would you please stand.
53On the charge of attempting to pervert the course of justice, you are sentenced to five months' imprisonment, with a Community Correction Order of 12 months with the following conditions. Treatment to rehabilitation for drugs, alcohol, mental health and also programs to reduce your offending and I will also put a supervision condition on.
54Now Mr North when a CCO is imposed you must abide by the conditions of the CCO and you must not commit any offence during the period of the CCO. If you do not abide by the conditions, or if you commit a further offence, then you can be charged with breaching the CCO and brought back before the court, me, for re-sentencing on this offence today and also for breaching the CCO. A charge of breaching a CCO also could carry a further term of imprisonment up to three months' imprisonment. Do you understand what would happen if you were to breach the CCO?
55OFFENDER: Yes, Your Honour.
56HER HONOUR: And do you consent to the CCO being imposed?
57OFFENDER: Yes, I do Your Honour.
58There is no pre-sentence detention to declare. I declare pursuant to s6AAA of the Sentencing Act that if you had not pleaded guilty, I would have sentenced you to 18 months' imprisonment, with a non-parole period of nine months.
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