Director of Public Prosecutions v Ryan

[2023] VCC 2046

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01635

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAMMY RYAN

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2023
DATE OF SENTENCE:	27 February 2023
CASE MAY BE CITED AS:	DPP v RYAN
MEDIUM NEUTRAL CITATION:	[2023] VCC 2046

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Persistent contravention of family violence intervention order – Attempting to pervert the course of justice – Subject to CCO at the time of offending – Dysfunctional childhood – Relevant criminal history – High moral culpability – Verdins principle 5 enlivened – Offender meets criteria for Generalised Anxiety Disorder and Persistent Depressive Disorder – Offender displays Borderline Personality Traits – Plea of guilty.

Legislation Cited:      Sentencing Act 1991; Family Violence Protection Act2008

Cases Cited:R v Verdins (2007) 16 VR 269.

Sentence:                  Community Corrections Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Kelly	Office of Public Prosecutions
For the Accused	Mr J J Lavery	McFarlane Criminal Lawyers

HIS HONOUR:

1Tammy Ryan, you have pleaded guilty to an indictment containing two charges. Charge 1 is an offence of persistent contravention of a family violence intervention order, contrary to s 125A(1) of the Family Violence Protection Act2008. This offence carries a maximum penalty of five years’ imprisonment. Charge 2 is an offence of attempting to pervert the course of justice contrary to Common Law. This offence carries a maximum penalty of 25 years’ imprisonment.

2Your pleas of guilty followed a sentence indication. On 25 November 2022. I indicated that if you pleaded guilty, I would sentence you to a Community Correction Order (“CCO”).

3An agreed prosecution summary of the circumstances of your offending was read aloud in Court.[1]

[1]Exhibit 1.

Circumstances of the offending

4You were in a relationship with Mr Palmer for some two and a half years. The relationship ended in April 2020, but you continued to live at Mr Palmer’s address. Mr Palmer obtained an intervention order against you prohibiting family violence, but allowed contact.

5On 18 June 2020, the intervention order was varied to no contact and served upon you. It prohibited you from contacting Mr Palmer and his two children.

6At 8.53pm on 13 October 2020, you sent Mr Palmer a text message which read:

I spoke to the court about the cheque for the windscreen and it will be sent to your address have you received it?

7On 1 November 2020, Mr Palmer attended your home address to collect his belongings. This had been arranged through the police. Your flatmate handed over a bag to Mr Palmer containing his belongings.

8Following this date, Mr Palmer received two phone calls from a private number on 7 November 2020 at 1.49am and 3.52am. On the same day, he received three text messages from you as follows:

1.22pm – Hi nick, I found your alarm clock and cards from the kids did you want them also Riley mentioned he has a scooted at your house are you able to please drop off

1.56pm – Could you please come over it’s important.

2.06pm – It’s mick he housemate I have her phone I’ve sent you the last text I’m worried about Tam if you could come here I’d appreciate if she isn’t good and I’m worried about her.

(Charge 1 – Persistent contravention of a family violence intervention order.)

9Mr Palmer attended Warragul police station on 9 November 2020, and made a statement setting out the contact and messages he had received.

10Sometime leading up to 13 November 2020, your flatmate told you that Mr Palmer was seeing somebody else. You told your flatmate that you had sent Mr Palmer a message saying it was from him. Your flatmate wasn’t happy and said to you ‘What the hell did you do that for’.

11Police attended your home address on 13 November 2020. You told the police, ‘It wasn’t me, it was my housemate Mick’. You were transported to Warragul police station. At the police station, you requested and were allowed to call your mother.

12While you were speaking to your mother, Detective Acting Sergeant Michael Thek was some 10 metres away from you. He heard you say ‘I need you to call Mick and tell him to say he sent the text messages – not me’ (Charge 2 – Attempting to Pervert the Course of Justice).

13Police attended your mother’s residence. Your mother made a statement confirming that she had received a call from you in which you asked her to ring your housemate Mick and ask him to provide a statement that he had sent the texts.

14You were interviewed following the taking of the statement from your mother. You denied telling your mother to call Mick and get him to accept responsibility for sending the text messages.  You went onto say that it was Mick who had sent the messages from your phone. You said you were drunk, passed out and had left your phone on the porch. You continued to deny sending the texts and told the police to speak to your housemate.

Impact of the offending

15Mr Palmer has made a victim impact statement dated 2 March 2021.[2] I have taken into account the impact of your offending upon him.

[2]Exhibit B.

Personal Circumstances

16A psychological report dated 16 October 2022, prepared by Sandra Cokorilo, was tendered on the plea.[3] It sets out your personal history. In addition, your counsel addressed your personal history in written and oral submissions.

[3]        Exhibit 3.

17You were born in January 1976 and are now aged 47. You grew up in Endeavour Hills, Victoria with your two siblings and experienced a dysfunctional childhood. Your parents separated when you were five years old, and you were raised by your father from this age. Your mother experienced significant mental health problems.

18Prior to your parents separation, you witnessed and were also subjected to family violence by your mother. Your mother was an alcoholic and was verbally abusive to you. You reported to Ms Cokorilo that you had been ‘kidnapped’ by your mother for two weeks when you were seven years old, before being returned to your father’s home. You also witnessed your mother engage in property damage.

19When you were 17 years old, your relationship with your father deteriorated, as you were in conflict with his then 21-year-old partner. As a result of this conflict, you were evicted from your home. You began suffering panic attacks and were unable to complete your Year 11 exams.  You also experienced financial hardship and became involved in the criminal justice system.

20You have been in a number of short term relationships. Two of your earlier relationships produced children. You have an adult daughter and son. Your most recent relationship was with the victim in this matter.

21You raised your children without the support of their biological fathers. You were verbally and emotionally abused by the father of your son. You have reported struggling with episodes of depression since you were 22 years old.

22You were married for some 15 months until 2005, when your partner ended the relationship due to your mental health issues. You were in a four-year relationship from 2007 which ended after your partner coerced you to terminate your pregnancy and proceeded to cease all contact with you.

23You reported that you began abusing alcohol in late 2017 around the time you commenced your relationship with the victim in this matter.

24You had a positive relationship with the victim for two and a half years. The relationship ended in April 2020, after you argued with his children while under the influence of alcohol and benzodiazepine. You reported that the end of this relationship ‘broke you to your core’. You have acknowledged that you struggle to accept the end of relationships.

25You have attended regular telehealth appointments with psychologist Natasha Doulgeridis since February 2020. You were voluntarily admitted to a psychiatric clinic in June 2020, following a suicide attempt.

26Your relationship with your mother has improved since 2020. Following the breakdown of your relationship with the victim, you and your son resided with your mother for four months. Since this time, you have lived in a private rental property and continue to maintain contact with your mother.

27Your alcohol abuse ceased in December 2021.

28You completed a Certificate III in Business Administration in 2010. You have maintained largely consistent employment in various roles including as a retail assistant, medical receptionist and administrative office. You have been working as a hairdresser in the recent past and are currently running your own hairdressing salon.

29You are extremely close to your two adult children. Your relationship with them is a key source of support. You are also in regular contact with your father. You have a positive relationship with your sister.

Criminal history

30You have a relevant criminal history. It includes offending involving violence and dishonesty. You have some nine prior convictions for breaching an intervention order, as well as a number of convictions for the more serious charge of persistently contravening family violence intervention order. You also have a prior matter for an offence of making a false report to the police. You have received sentences which include adjourned undertakings, fines, CCO’s and a wholly suspended sentence. A number of your recent prior matters involving breach of family violence orders relate to the victim in this matter. I have had regard to the helpful chronology prepared by the prosecution. At the time of this offending, you were subject to a CCO imposed only three months prior for similar offending against the same victim.

Objective gravity

31I accept that charge 1 was limited to a few telephone messages and calls. However, your moral culpability, which I regard as high, is to be assessed in the context of your significant history of offending against Mr Palmer. Family violence cannot be tolerated in our society and must be strongly condemned and denounced. The offending is aggravated by the fact you were subject to a CCO for family violence offences against the same victim. I also take into account the profound impact your offending has had upon the victim.

32There is no doubt that charge 2 is also an inherently serious offence. It carries a maximum penalty of 25 years imprisonment. However, in the circumstances of your case, I accept that the offence is a low-level example. It was committed spontaneously and was an unsophisticated attempt involving no violence or threats. Whilst it was calculated to avoid punishment for family violence offending, it was unlikely to be successful.

Matters in mitigation

33Despite repeated disregard for court orders and sentences, it appears that you are finally beginning to appreciate, not only your offending conduct, but also the fact that the courts will not hesitate to send you to prison should you continue to reoffend. On 25 November 2021, you were sentenced to a term of one month imprisonment for an offence of persistently contravening family violence order. I am told that the experience of custody and being absent from your children, in particular your son who resided with you, has had a salutary effect. You have not reoffended in any way since your release from this sentence in December 2021. In May 2022, you commenced your own hairdressing business. You are in the process of completing your hairdressing apprenticeship. You have been undergoing counselling sessions with Dr Doulgeridis.[4] You told Dr Doulgeridis that you have finally accepted the fact that your relationship has ended with the victim and have moved on with your life. It is hoped that you maintain your current path and can live a law-abiding life.

[4]Exhibit 5.

34Although not the earliest opportunity, you have pleaded guilty and are entitled to a sentencing discount. A trial has been avoided saving court time and expense. Your pleas of guilty attract a greater utilitarian benefit, as they have been entered when the courts are facing significant delays in relation to criminal trials. The courts must encourage those who are guilty to so plead and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.

35I take into account the opinions expressed by Ms Cokorilo. She states that you meet the criteria for Generalised Anxiety Disorder and Persistent Depressive Disorder. You have symptoms consistent with Post-Traumatic Stress Disorder. You also present with Borderline Personality Traits, characterised by fears of abandonment and manifesting as instability in affects and interpersonal relationships. Ms Cokorilo states that you have been making progress in the recent past, including securing stable employment, establishing a business and reducing your alcohol intake. There has been an improvement in your mental health. I accept that a term of imprisonment would be more burdensome upon you on account of your mental health.[5]

[5]R v Verdins (2007) 16 VR 269, Principle 5.

Sentencing

36In sentencing you, I must pay regard to general deterrence, denunciation and the protection of the community. Bearing in mind your relevant prior history, specific deterrence is also an important sentencing purpose. These important purposes need to be balanced with maintaining your rehabilitation.

37At the sentence indication hearing, the prosecution, particularly influenced by your recent progress, accepted the defence submission that a suitably structured CCO would adequately meet all the relevant sentencing purposes.

38I will, as I must, sentence you, in accordance with my sentence indication.

39On charges 1 and 2, you will be convicted and sentenced to a two year CCO.

40Every CCO has core conditions that you must comply with. They are as follows:

·        You must not commit any offence punishable by imprisonment.

·        You must comply with any obligation or requirement prescribed by the regulations.

·        You must report to and receive visits from the Secretary.

·        You must report to the community corrections centre within two clear working days.

·        You must notify the Secretary of any change of address or employment within two clear working days of the change.

·        You must not leave Victoria except with the permission of the Secretary.

·        And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

41In addition to the mandatory core conditions, the CCO will also include the following special conditions:

·        First, you must perform 200 hours of unpaid community work.

·        Second, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.

·        Third, you must undergo any mental health assessment and treatment as directed.

·        Fourth, you must engage in programs that address factors relating to your offending behaviour.

·        Fifth, you will be subject to supervision as directed for the duration of the CCO.

·        Sixth, you will be subject to judicial monitoring. That means you will have to appear before me as directed so that I can monitor your progress. I direct the first judicial monitoring hearing will take place at 9.30 am on Monday, 15 May 2023.

42Pursuant to s 48CA(2) of the Sentencing Act1991, I direct that 75 hours of treatment and rehabilitation successfully undertaken is to be counted   for the purposes of the unpaid community work condition.

43You must report to Warragul Justice Service Centre within two working days.

44You need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the mandatory or special conditions, then you could be charged with the offence of breaching the order.

45The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to Court and face sentencing for that breach offence.  In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally. You would then face the very real possibility of being sent to prison.

46So, there are serious consequences attached to any breach. Do you understand that Tammy Ryan?

47MS RYAN: Yes I do.

48HIS HONOUR:  Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?

49MS RYAN: Yes I do.

Section 6AAA declaration

50Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted, you would have been sentenced to a term of 2 years imprisonment with a non-parole period of 15 months.