Director of Public Prosecutions v Peterson (a pseudonym)

[2022] VCC 1208

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LOUIS PETERSON (a pseudonym)

---

JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2022, 24 May 2022, 7 July 2022
DATE OF SENTENCE:	28 July 2022
CASE MAY BE CITED AS:	DPP v Peterson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1208

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:  Two charges of attempting to pervert the course of justice – false reports to police regarding Intervention Order breaches – reports resulted in complainant being remanded in custody – serious example of the offence – impaired mental functioning played a role in the offending – prospects of rehabilitation ‘quite good’

Legislation Cited:                Sentencing Act 1991

Cases Cited:R v Buscema [2011] VSC 206; Worboyes v R [2021] VSCA 169; Verdins v R (2007) 16 VR 269; Semaan and Beljuljiu v R [2017] VSCA 179, Middletons and Ors v R [2018] VSCA 23, Saleem v R [2014] VSCA 190 Tognolini v R [2011] VSCA 113

Sentence:Total effective sentence of 24 months imprisonment with a non-parole period of 12 months imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Ms S. Parsons	Doogue & George Lawyers

HIS HONOUR:

Introduction

1Louis Peterson[1], you have pleaded guilty to two charges of attempting to pervert the course of justice.

[1] A pseudonym

2The circumstances giving rise to these charges appear in the document entitled 'Summary of Prosecution Opening', which is exhibit A.  You admit the factual content of this document.

Circumstances

3Exhibit A sets out in some detail your actions and those of your brother, and the actions of the police in response.  Essentially, despite the making of final orders in 2018, you remained in a dispute with your former partner over the custody of your young daughter, Lily[2].

[2] A pseudonym

4On 25 August 2018, you created a series of text messages, some purporting to come from your former partner and sent to you, and the rest from you to her. The exchange was heated and included a threat by her to kill you.  Since she was already the respondent to an interim family violence intervention order where you were the affected family member, if true, her contact constituted a contravention of that order.      

5On 3 September 2018, you went to the Bairnsdale Police Station and made a formal statement about the text messages you had created on 25 August. These two sets of actions constitute Charge 1, attempting to pervert the course of justice.

6Not content with your first effort, on 12 September 2018 you rearranged the contact details on your phone so that if your brother rang you, it appeared that it was your former partner doing so.  You and your brother then created a series of threatening messages purporting to come from your former partner.  Examples of these messages are contained in paragraph 12 of Exhibit A.

7You then went to the Morwell police station and showed the police the messages created by you.  Again, not content with that, you sent a message to your brother saying 'Go now', and he then phoned your phone nine times, purporting to come from your former partner.  You told the police that.

8Within minutes of your contact with your brother, you contacted him again, saying, 'Call me again so it's seen'.  He rang twice and you showed the police the calls.

9You made a statement to the police.  It is this act, together with the actions starting on 12 September 2018, which constitute Charge 2, attempting to pervert the course of justice.

10Meanwhile, your former partner had been arrested, charged and remanded in custody, and then later bailed following your complaint on 3 September.  She spent several days in custody.  The police were intending to arrest and charge her again when they decided to investigate further and discovered your deception.

11When interviewed your brother implicated you.  When you were interviewed you continued to implicate your former partner.

Personal

12You are 29.  You were born and raised in Gippsland.  You have a twin brother.  You had a sister but she died at the age of five.  You have two half‑sisters.

13Your father was an alcoholic.  He was violent to you, your mother and the older of your half-sisters.  Your parents separated when you were 11.  Until then, your childhood was highly traumatic and abusive.

14You, and the other children, stayed with your mother.  Your mother remarried.  Her husband already had two sons.  The entire family moved to Bairnsdale. 

15You attended three primary and two secondary schools.  At 14 you were diagnosed with Asperger's Syndrome.  You were then provided with a teacher's aide. The diagnosis became known and you were bullied.  You attempted suicide at 15.  Nevertheless, you completed VCAL.

16After leaving school you started an apprenticeship in painting and decorating, but you did not enjoy painting ceilings.  You lost interest in your apprenticeship and stopped it.

17Between 20 and 23, you worked as a technician for Foxtel.  You then moved to Mackay in Queensland and worked in Kmart.  You returned to Melbourne and became apprenticed to your stepfather as an electrician.  You completed the practical requirements of the apprenticeship but not the written exams.  For the last two years you have been employed in warehousing.  You enjoy the work and you enjoy your employer.

18Your working career has been more complicated than indicated above.  You have had 15 unskilled occupations, all of which ended because of your difficulty fitting in with other employees. 

19You are the father of two children.  The eldest, Lily, lives with her mother in Queensland.  Despite the distance you have regular contact with her.  You are married to Isra[3].  Your son, Noah[4], was born in April of last year.

[3] A pseudonym

[4] A pseudonym

20Your wife is of Turkish background.  You converted to Islam more than two years ago.  You are close to your wife's father, whom you describe as your mentor in the Islamic faith.  You spend your leisure hours playing cricket, breeding and showing dogs, and at home with your family.  You told the neuropsychologist, Dr Evans, of your plans.  To her they suggested a future for you with increased responsibility.

21Between the ages of 20 and 23 you used methylamphetamine regularly.  Between 20 and 22, you used ecstasy.  You have experimented with cocaine, amphetamine and GHB.  You are not using illicit drugs now and have not done so for more than four years. 

22You suffer from seizures. 

Neuropsychologist

23Loretta Evans is a clinical neuropsychologist.  On 10 November 2021 she interviewed you at the request of your solicitors.[5] 

[5] Report dated 18 November 2021

24Dr Evans took a detailed history of your behaviour from your wife.  Overall, you are of average intelligence but your memory is in the low average range.

25She diagnosed you as suffering from a disorder along the Autistic Spectrum. 

26She considered your risk of re-offending as minimal.

27Of the link between this disorder and your offending Dr Evans said:[6]

'…it is proposed that the underlying symptoms associated with a disorder along the Autistic Spectrum are likely to have been a contributing factor (though not a causal) factor to his offending behaviour.'

[6] Report at p 17

28As to the effect of imprisonment she concluded:[7]

'Hence, based on social deficits, together with poor emotional regulation and inability to effectively self-regulate, in the absence of strict psychological monitoring and adequate treatment of emotional dysfunction and symptoms, I consider Mr Peterson is at heightened risk of continued emotional distress that may negatively impact on the way he interacts with others - which in turn, has the potential to cause harm to self or others.  Under such circumstances, it is my opinion that a term of imprisonment is likely to become increasingly more onerous for Mr Peterson.'

[7] Report at p 18   

29As to treatment she recommended:

(a)   psychological counselling to address seven areas of need;

(b)   psychiatric treatment to determine whether the prescription of medicines is needed;

(c)   that you contact an organisation called Autism Spectrum Australia to see what it can offer you and your family by way of programmes.

30Finally, Dr Evans considered your prospects of rehabilitation as 'quite promising'.   

Discussion

31Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in;  and

(e)   to protect the community from the offender.

32Each of those purposes is relevant in your case.

33Section 5(2) of the Sentencing Act sets out various factors which I must take into account where they are relevant.

Maximum Penalty

34The maximum penalty for the charge of attempting to pervert the course of justice is 25 years' imprisonment.  This is the second highest penalty for an offence in our criminal law.

Gravity

35In R v Buscema[8], Nettle JA outlined some of the factors bearing on the assessment of the nature and gravity of the offence of attempting to pervert the course of justice:[9]

‘Offences of attempting to pervert the course of justice are conceived of as striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition.  The offence is broadly defined, however, and so may be committed in a wide range of circumstances, and the particular circumstances of each case inform the gravity of the offending.  Circumstances which bear upon the assessment of the nature and gravity of particular offending, and so upon the sentence to be imposed, have been identified  as including the following:

a)      The consequences which the offending was calculated to avoid;

b)      The time for which the deception was maintained and whether it was actively repeated or persisted in or merely allowed to continue;

c)      Whether the deception involved some other person, either as an accomplice or as a victim;

d)      Whether there was any threat or violence involved;

e)      Whether the offence was spontaneous or premeditated;

f)       Whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that.’

[8][2011] VSC 206

[9] At paragraph 6

36Your offending was premeditated on both occasions.  You sought to improve your position regarding the custody of your daughter by immersing your former partner in the criminal justice system.  Having seen her remanded for several days after your first complaint, you contrived to place her again in that position, and I make that as a positive finding.  Unlike other cases, you were not trying to avoid adverse consequences for yourself.  You were seeking to gain an advantage for yourself.

37Your deception occurred over a relatively short period, but only ended at that stage because of the police having reason to investigate further.  Even if they had not done then, it is likely your deception would have been ultimately discovered.

38Over the years, both before and since the report of the Royal Commission into Family Violence, the police response to allegations of family violence has changed.  The police are far more active.  Your actions caused the police to act to enforce the conditions of a family violence intervention order.  

39The charges describe significant examples of the offence of attempting to pervert the course of justice.  Your actions were intended to have adverse consequences for your former partner and, in fact, they did.  Following your second approach to the police they were preparing to arrest your former partner and, undoubtedly, seek her remand in custody.  Given she was on bail for similar alleged offending the chances of her obtaining bail were poor.  It is fortunate the police investigated further.     

Culpability

40Your blameworthiness is reduced to a limited extent because of the matters identified by Dr Evans.  She said:[10]

‘However, based on his presentation during interview and neuropsychological profile, he is capable of calm responding and clarity of thought at a simplistic level. Additionally, he demonstrates a basic understanding of right from wrong although his capacity to fully appreciate the potential repercussions of his actions is limited. Hence, deficits in social-emotional reciprocity and processing do impede his decision making to a degree. Specifically, due to limited theory of mind (i.e., the ability to consider the mental state of oneself and others, including emotions, beliefs, knowledge etc.), it is considered likely that Mr Peterson’s decision making can tend to be driven by egocentricity that is based on his own needs and wants, which is potentially further compounded by impulsive tendencies.’

[10] Report at p17.

41I accept that opinion.  Your underlying condition played a modest part in the commission of these offences.       

Victim Impact Statement

42Your former partner made a victim impact statement on 21 April 2022.  The unredacted parts of her statement read:[11]

'I met Louis in 2013 when I was 15… We moved to Bairnsdale in 2015 together and I fell pregnant with our daughter Lily in September of 2016….So at the age of 19, with an eight-month old daughter, I packed what belongings I could into my car and began to drive back to Queensland on my own.  I left my beloved home and all my other belongings there and would later organise everything once I was in the safety of my parents' home…After my intervention order was granted a few months later Louis also applied for an order… I cried asking why my intervention order didn't protect me and what was the point of even having one if I was still getting abused.  There was no repercussion to them and yet I suffered immensely.  I cried in that cold celI for days on end for something I never did.  I felt violated and depressed.  I had to sleep on a concrete slab with a thin canvass mattress that was shorter than the length of my body, no pillow, and a canvas blanket so thin it couldn't keep my freezing body warm.  I had to get back into the same clothes day after day and as a female this was absolutely disgusting and humiliating,  I got strip searched with multiple guards surrounding me and outside the door, I have never felt so embarrassed and low in my life.  This caused me so much physical and mental pain that I am still not healed from.  I often still have flashbacks of this time and wonder why I deserve that to happen to me when I entrusted the police to protect me.  Often during this time I asked myself is there anyone I can trust to stop the abuse Louis and Daniel[12] had been doing to me? 

Months went by after this traumatising incident, I made sure I did not contact either of the boys to ensure I didn't go to gaol or risk losing my daughter. They made statements to the police about me allegedly contacting them, I felt like the nightmare was never going to end.  I had DHS knocking on my door multiple times due to allegations made to them from Louis and Daniel to try to have Lily taken off me because they were not happy with the outcome of the Family Law Court proceedings.  I felt harassed and I cried to the DHS worker because I couldn't live my life in peace with my daughter, there was always something I had to deal with and clear my name from the dirt they were throwing on it.  I often cried myself to sleep as I was miserable, they were still harassing me years later.  All I wanted to do was to escape the abuse, feel free and safe to live my life with Lily.  Not once did I ever stop any of the family members from seeing Lily.  I always tried to do the right thing and yet I suffered day after day. 

I have been to multiple psychology sessions and seen a psychiatrist at St Andrews Hospital in Toowoomba.  I was diagnosed with BPD in 2021…  I have spent hundreds and hundreds of dollars trying to learn ways to cope with the mental pain they have left me with, all the anxiety and PTSD flashbacks, all while trying to be the best mother I can be to our daughter.  Louis and Daniel have not suffered like I have, there have been no consequences for the way they have treated me…  I have been through hell and back and have stayed strong for Lily.  I hope justice will be served today and these boys will pay in the full extent of the law for every bit of pain and suffering they have bestowed upon me and my family.'

[11] Victim Impact Statement sworn 21 April 2022

[12] A pseudonym

Guilty Pleas  

43It is only in rare cases that a plea of guilty will not result in a discount on the sentence which would otherwise be imposed.  A plea of guilty has the practical or utilitarian benefit of saving the time and expense of a trial and relieves the need for witnesses to give evidence.  The level of the discount increases if the pleas support a finding of remorse, which is the case here.  However, any plea of guilty in the time of the pandemic adds further to the level of discount.  This was made clear by the Court of Appeal last year.  The effect described by that court remains despite concerted efforts to overcome the problem.  In the case of Worboyes v R[13] the court said:  

‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’

[13] [2021] VSCA 169 at paragraph 35

44Your pleas of guilty were made at the earliest reasonable opportunity in the course of a process starting with the laying of the charges and ending in a trial.  Overall, your pleas result in a very significant discount on the sentence that would otherwise have been imposed.  

Criminal History

45In May of 2013, you made your only appearance in a criminal court to answer two traffic offences.  One of the offences, driving while your licence was suspended, is potentially serious, but the penalty imposed indicates it was a minor infringement.

46After the commission of these offences, you appeared in a criminal court to answer other charges.  Judging from what I have been told, the offending was of little moment.

47Overall, those offences have no significance in my sentencing of you and have little impact in my assessment of your character. 

Verdins

48Your counsel relied upon the propositions stated in Verdins v R[14].  I have already dealt with your moral culpability and cited Dr Evans' conclusion as to the likely effect of imprisonment upon you.  I also  consider your impaired mental functioning is relevant to the sentencing purposes of general and specific deterrence.    

[14] (2007) 16 VR 269

Prospects of Rehabilitation

49Dr Evans said that your prospects of rehabilitation were 'quite good'.  She recommended forms of assessment and treatment.  Based on the factors underpinning her view, I would accept her assessment.   

Current Sentencing Practices

50The prosecutor drew my attention to four judgments in the Court of Appeal dealing with the offence of attempting to pervert the course of justice.[15]  In Tognolini's case the court annexed a list of 21 cases involving this offence and the sentencing outcomes.  The sentences varied between imprisonment for four years and imprisonment for three months, reflecting the wide range of circumstances encompassed by the offence.  In none of those cases was a non-custodial sentence imposed  That was also true of the four cases referred to me by the prosecutor.

[15] Semaan and Beljuljiu v R [2017] VSCA 179, Middletons and Ors v R [2018] VSCA 23, Saleem v R [2014] VSCA 190 Tognolini v R [2011] VSCA 113

Pre-Sentence Detention

51There is no pre-sentence detention. 

Discussion

52You must remember the maximum penalty for the offence of attempting to pervert the course of justice is 25 years' imprisonment.  Obviously and understandably, the law treats this offence very seriously.  ‘Understandably’ because the integrity of the justice system is at stake and must be upheld.  Through its sentencing for this offence, courts must strive to ensure the maintenance of the integrity of the system.  Both deterring you and deterring others of like mind from attempting to pervert the course of justice is very important among the purposes of sentencing.  Owing to your impaired mental functioning at the time of the offending I consider both general and specific deterrence should be moderated to a limited degree. 

53Notwithstanding the moderating effect, your offending needs to be denounced as the behaviour was disgraceful.  The impact of your offending upon the victim has been profound.  That is clearly seen from the unredacted parts of her victim impact statement which I have just read out. 

54I am conscious of your personal circumstances, especially through the report of Dr Evans, your prospects of rehabilitation and your pleas of guilty.  There is an important part to be played through rehabilitation.  At present, and hopefully into the future, the need to protect the community from you is a lesser consideration.

55Even though you have never served a term of imprisonment, there must be one imposed.  As I have said, the gravity of offending is significant.  Your actions would be expected to have serious consequences for the victim and did, in fact, have such consequences.  Imprisonment may present significant difficulties for you owing to the effects of your disorder.   

Sentence

56On Charge 1, you are sentenced to 12 months' imprisonment.

57On Charge 2, you are sentenced to 18 months' imprisonment.

58The sentence on Charge 2 is the base sentence.  Six months of the sentence on Charge 1 will be served cumulatively on the base sentence.  The total effective sentence is 24 months' imprisonment.  I will set a non-parole period of 12 months' imprisonment.

s6AAA Declaration

59If you had not pleaded guilty to these charges, but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 32 months' imprisonment and set a non-parole period of 16 months' imprisonment.

- - -