Director of Public Prosecutions v Roach

[2017] VCC 1626

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01343

DIRECTOR OF PUBLIC PROSECUTIONS

v

KERRY ROACH

---

JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 November 2017
CASE MAY BE CITED AS:	DPP v Roach
MEDIUM NEUTRAL CITATION:	[2017] VCC 1626

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms A. Alpin
For the Accused	Ms T. Bolton

HIS HONOUR:

1Kerry Roach, you are to be sentenced for one count of attempting to pervert the course of justice.  The maximum sentence is 25 years imprisonment.  You are also to be sentenced for the summary offences of committing that indictable offence on bail and breaching a conduct condition of bail.  Just excuse me.  The maximum penalties for both of those offences is a fine of 30 penalty units or three months imprisonment. 

2You pleaded guilty before me on 3 November.  When interviewed by police on 26 April 2017, you denied the offending, giving quite detailed and false explanations, most of which I found to be untenable.  However, the matter was quickly resolved  at committal.  It  went as a hand-up brief on 5 July, after which you pleaded guilty.  The matter was then listed for plea hearing in this court. 

3You receive the benefit of your plea of guilty which was made early and which has facilitated the interest of justice.  It also expresses remorse.

4At your plea hearing, also on 3 November, Mr Pickering for the Crown tendered a written Crown opening.  Ms Bolton, for you, has tendered your mother's letter to the court and the forensic psychological report of Carla Ferrari, dated 30 October 2017.  Ms Bolton provided a written outline of submissions. 

5The circumstances of your offending are comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may be short. 

6On 8 March 2016, you were arrested and charged with robbery of the wallet of a former housemate, Toby Petith-Jones.  You were bailed which was typically conditioned upon you not making contact with him or other prosecution witnesses, except for the informant.  On 23 April of this year, you made several contacts with him by Facebook,   text messaging and by phone.  In essence, you offered him $1,000 to withdraw his allegation.  There could be perceived an element of threat.  Petith-Jones took it that way, he went to the police. Given the timing, clumsiness and grandiose tone of your communications to him,  I accept the explanation that you were effected by drug use when you did this.

7The robbery matter went to court in July.  A Victorian police criminal record states that,  on 7 July, you were sentenced to a community corrections order of twelve months duration for robbery and other offences, some also of dishonesty.  There was a condition that you perform 125 hours of unpaid community work and conditions related to treatment and rehabilitation.

8Upon being charged for this matter before me, you were remanded and have spent 71 days in custody.  You received bail again in early July, just prior to the community corrections order sentence I have just identified. 

9You are a 26 year old man who was raised and educated in New Zealand.  You came here in 2014.  You had an unsettled childhood affected by loss and sadness.  There was your parents' separation, the difficulties in your relationship with your mother and that you moved from her care to that of your father and step-mother when 12.   Your mother's new partner was physically and emotionally abusive to you.  You lost your grandfather when 10 and an older half-sister to heroin overdose when 12.  There was a diagnosis of attention deficit hyperactivity disorder.  Medication affected your functioning and you stopped that in early teenage.  Schooling was unsuccessful.  You left after achieving Year 10 and studied to become a qualified chef.  You then completed a course in music production.  You have worked since as a disc jockey and in hospitality. 

10You began to use cannabis at 15 and have continued to do so, in teenage heavily.

11You began using methylamphetamine about 18 months ago.  You stated to forensic psychologist Carla Ferrari  that you have not used that drug since this offending.  Your criminal history, prior to these matters, is in New Zealand.  The record filed with the indictment states between November 2007, when you were 15, and June 2012 seven court appearances.  A number related to breach of community work orders and on which you were discharged.  There are, in majority, offences of dishonesty.  Two appearances are in a youth court when you were aged 15 and 16. 

12In respect of these offences, those before me, to Ms Ferrari, you explained a context of relationship breakup and relapse into amphetamine use.  You expressed,  in an appropriate way, remorse to her.  You also report two attempts at suicide, when 13 and therefore in the difficult childhood circumstances I have described,  and in remand custody for these matters.  However, you do not present as having entrenched mental health conditions, although Ms Ferrari does state untreated ADHD.

13Other than that, psychological symptoms seem to be in response to situational factors.  Remand prison has been hard for you.  Substance abuse, is said to be presently in remission,  has been a problem and the risk of its return remains.  Ms Ferrari recommends ongoing psychological treatment addressing these issues.  Your present community corrections order attempts to do so. 
Ms Bolton's enquiry has resulted in a report of good progress on that order. 

14The offence of attempting to pervert the course of justice carries a maximum sentence of 25 years, reflecting how serious it can be.  I agree with the proposition that this example is at the low end of its range.  I bear in mind that there was an element of threat in what you put to Mr Petith-Jones.

15I find that this is a case, considering its circumstances, to which intoxication is relevant and in some degree mitigating.  To an extent, I see this behaviour as born of distorted judgment.  All the same, sentencing purposes and considerations of deterrence, particularly general deterrence, moral culpability and the need to punish still apply.

16I also take into account relevant factors that go to moderate that punishment and sentence.  They include the following.

17(1).  Your plea of guilty.  I accept that you have become remorseful. 

18(2).  You are still relatively young and the importance of rehabilitation is still relevant.  You presently have a stable relationship with a functional,  pro-social young woman who is supportive of you.  She has been in court.  You seem to be engaging well in the present community corrections order. 

19(3).   I take into account the difficulties of your childhood and developing years. 

20The summary offences are very closely aligned to the indictable matter, which is emphatically the major offence.  In the Crown summary, my attention is drawn to the provisions of s16(3C) of the Sentencing Act, which state prima facie cumulation of sentences  for offending whilst on bail.   That must be balanced against the totality principle.  In any event, I find that the appropriate punishment for the summary matters here is not imprisonment, but a community corrections order.  I shall frame my total sentence accordingly.

21The proper sentence is a sentence of imprisonment reflecting what you have served and therefore not requiring your return to custody, which I see as a particular hardship; but combined with another community corrections order of longer duration and with further and longer hours of unpaid community work.  The Crown does not argue that such a sentence is out of range.

22Stand up please.  I sentence you as follows.  On the indictable charge of attempting to pervert the course of justice, you are sentence to 71 days imprisonment.  However, I declare pre-sentence detention of 71 days as already served.  Additionally on that charge, and on the two summary offences, I convict you and impose a community corrections order of two years duration. The usual terms apply.  There is the additional term that you perform over that period of time 200 hours of unpaid community work.  Now taking the lead from the Crown summary, although I have not researched it again, there is no need for a s.6AAA indication in a sentence of under two years I think or twelve months.  Could you just have a look at that?

23In any event, whilst you are doing it, if it is necessary, I would have imposed a total sentence of six months with a community corrections order.  Are there other matters?

24MS BOLTON:  The forensic sample is by consent, Your Honour.

25MS ALPIN:  Forensic sample order, Your Honour.

26HIS HONOUR:  Yes, yes well I will sign that if you can hand that up?  Ms Bolton, what is the relevant Community Corrections Centre?

27MS BOLTON:  If I could just ‑ ‑ ‑

28HIS HONOUR:  Yes, all right.

29MS BOLTON:  It's the Carlton Correction Centre - Corrections Office, Your Honour.

30HIS HONOUR:  Good, thank you.  Now as well as those orders I have already pronounced, I am going to make an order that you supply a sample of your saliva.  The reasons for doing that are the seriousness of this offending, that you do have prior convictions, some of which are relevant.  The order or the application is not imposed.  I find granting of the order is in the public interest. 

31What will happen is that you will need to attend the officer in charge - I should imagine at Carlton, but can anybody help, the Crown perhaps?  What is the right police station?  Let us have a look.

32MMS BOLTON:  I would've thought the city, the new one in the city. 

33HIS HONOUR:  Yes, there doesn't seem to be one at Carlton.

34MS BOLTON:  If I can just approach?

35HIS HONOUR:  Yes, all right.

36MS BOLTON:  Thank you.

37OFFENDER:  Melbourne West.

38MS BOLTON:  Melbourne West?  It's Melbourne West, I believe.

39HIS HONOUR:  Melbourne West?

40MS BOLTON:  Yes.

41HIS HONOUR:  All right, that is where you need to go.  You need to do that within eight weeks, meaning this, after the period of four weeks, but before the end of the next four weeks.  You will be asked to take a sample of your saliva by a cotton swab inside your mouth.  If you do that cooperatively, that is the end of it.  If you do not do it cooperatively, a blood sample may be taken by injection and reasonable force used.  Good, thank you.  I will sign that order now.  You can now come out of the dock and sit near Ms Bolton.

42OFFENDER:  Thank you, Your Honour.

43MS BOLTON:  And I note Your Honour's already made the declaration, but I think - I believe you do have to make it anyway.  I was just looking - we are just looking up the Act.

44HIS HONOUR:  Is that right is it?

45MS BOLTON:  Yes, because you've imposed a community corrections order for a period of two years and I think that's when it comes - it comes into.  If it was under the two years ‑ ‑ ‑

46HIS HONOUR:  I don't know that you have to for a community corrections order, we'll look at that, but I've made the order.

47MS BOLTON:  I'm looking at - if this assists, it's 6AAA sub-s.(1), sub-s.(b),
sub-s.(1)(b).

48HIS HONOUR:  Yes, go on.

49MS BOLTON:  And it just says - states "A community corrections order for a period of two years or more" and this is when - "And a fine, or an aggregate fine as well" and it states that ‑ ‑ ‑

50HIS HONOUR:  And what, any period of imprisonment?

51MS BOLTON:  No, it's not clear on that, Your Honour.

52HIS HONOUR:  All right, well I've made - I mean it's ‑ ‑ ‑

53MS BOLTON:  You've made it in any event though I note, so it's covered.

54HIS HONOUR:  It has some benefit in any event, so I'll make the order and that'll be included on the - I make the indication.  I've done that and it will be included on the sentencing order.

55MS BOLTON:  Yes.

56HIS HONOUR:  I think I need to add - I need to add the police station, I'll do it now and initial it.  Did you say Melbourne West?

57MS BOLTON:  Yes.

58HIS HONOUR:  Where's Melbourne West?

59OFFENDER:  That's the new one.

60MS BOLTON:  That's the new one.

61HIS HONOUR:  I see.

62MS BOLTON:  It's the new one in the city, the new city complex one.

63UNIDENTIFIED SPEAKER:  Do you know the street?

64MS BOLTON:  Spencer Street, yes, opposite MRC.

65HIS HONOUR:  Yes, all right.  He should be given a copy of that, thank you.  All right, now stand up please Mr Roach. For the reasons I have given, I have imposed as well as that sentence of imprisonment, which is already served, a community corrections order which starts today.  The usual terms are these - I should say it starts today and runs for two years.

66The usual terms are these, that you do not commit another offence for which you could be imprisoned over the time.  That you comply with the regulation prohibiting attending any program or appointment effected by alcohol or drugs, or in possession of the legal drugs. You must report and receive visits from Community Corrections. From today, you must report to the relevant Community Corrections Centre at Carlton within two days.  You must let Community Corrections know of a change of address or job within two days.  You must not leave Victoria without getting their permission and you must obey all of their lawful instructions and directions.  The addition is that you perform 200 hours of unpaid work over that two years, as you are directed.  Do you understand that?

67OFFENDER:  Yes, Your Honour.

68HIS HONOUR:  Do you agree to it?

69OFFENDER:  Yes, Your Honour.

70HIS HONOUR:  Yes, well I'll get you to sign it and then I'll sign it, thank you.  You'll get a copy of it.  All right, thank you.  Mr Stewart, you can bring up, when you get a chance, you can bring up that video link.  Now is there a copy of that for Mr Roach?

71ASSOCIATE:  Yes.

72HIS HONOUR:  All right.  Good, thank you.  Of both orders?  The community corrections order too?

73ASSOCIATE:  Yes, you've got to sign it.

74HIS HONOUR:  I'm sorry, all right.  You can go now.  Thank you, Ms Bolton.

75MS BOLTON:  Thank you very much, Your Honour.

76HIS HONOUR:  Thank you.

‑ ‑ ‑