Director of Public Prosecutions v Sacco

[2018] VCC 1455

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00975

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMY SACCO

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2018
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Sacco
MEDIUM NEUTRAL CITATION:	[2018] VCC 1455

REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Attempting to pervert the course of justice – Plea of not guilty – Secondary role in offending – Low range example of offence – Convicted – Community Corrections Order.   

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. Moore	Office of the Direction of Public Prosecutions
For the Accused	Ms M. Walker	Melinda Walker

HIS HONOUR:

1Amy Sacco, after a short trial, you have been found guilty by a majority verdict of attempting to pervert the course of justice.  The maximum penalty is 25 years imprisonment.

Circumstances of the Offence

2The circumstances of the offence emerged in the course of the trial which proceeded substantially in accordance with the prosecution opening.  At the commencement of the trial, where you were self-represented, you raised a number of constitutional and standing points which you asserted prevented the Court from proceeding with the matter.

3The matters raised had no merits.  They had all the hallmarks of having been prepared by a “jailhouse lawyer” and were designed to vex any court hearing the case against you.

4I ruled against you on those matters and the trial proceeded.

5The background to the offence was that you are now aged 27.  You had met a male, Jonas Black, when you were studying in Melbourne.  He was around twenty years older than you.  You had met him when your aged 16, and when you were around 18 or 19, you lived together with him in Prahran while you were studying at Swinburne University.  He had a one acre bush block at Turtons Creek.  You came from Turtons Creek and your parents lived nearby to his property.

6You ceased studying in Melbourne and returned to South Gippsland in order to enrol, along with your younger sister, in nursing at Monash University Gippsland and Latrobe Regional Hospital.

7You and Mr Black returned to the area.  It was not clear whether you were living full-time with him when you were studying at Monash and studying nursing, or also living with your parents at the time. 

8At all events, Mr Black got into a bitter dispute with the Shire of South Gippsland over some two buildings that were on the bush block he owned.  The Shire formed the view that they were illegal structures.  He was taken to court and a demolition or removal order was obtained.  There were further negotiations with the Shire, but ultimately, a deadline for a final inspection was fixed for 25 May 2015.

9You were fully aware of Mr Black’s dispute with the council.

10The dispute was taking a toll on Mr Black’s mental health.  You were supporting him over that period.

11On the weekend prior to 25 May 2015, Mr Black had a friend of his and another female from Melbourne attend and stay with him at the block.  On the Sunday, the four of you had a barbecue up in the bush.  At one stage, the two males left and did not directly return.  They subsequently returned to Mr Black's property, where you and the other female were waiting for them after having searched unsuccessfully for them.

12The visitors from Melbourne then left.

13On the morning of 25 May 2015, you left the property early and went to your parents' house nearby.

14Later that morning, the council inspector arrived along with another employee. Mr Black took to them with a length of scaffolding pipe.  He inflicted serious injuries on both men.  One of them ran to your parents' place and you administered first aid.  Police were called and Mr Black was apprehended.  He was remanded in custody at the Metropolitan Remand Centre and charged with assault.

15On 1 June 2015, you provided a statement to the police indicating some of your movements on the weekend before 25 May 2015.

16You were shocked by the events.  With Mr Black in custody, you were dealing with his affairs while he was in prison, including making arrangements to raise money for his legal representation and a bail application.

17On 15 June 2015, Mr Black telephoned you from the MRC.  The call was recorded. In the course of the call, the two of you discussed various matters associated with his affairs and the charges against him, including raising funds for his defence and the disposal of chattels .

18During the call on 15 June 2018, he advised you that he had signed his property out to you and that you were to collect it next time you were at the MRC.  Later on in the call, he indicated that the property consisted of a mobile phone and a pair of boots.  He asked you to throw the boots away while you were driving through the city.  You agreed.

19On 17 June 2015, you attended at the MRC in order to visit Mr Black and when you left, you sought to take receipt of the property from the property office.  The boots at that stage were in the custody of the police, so you are unsuccessful in taking possession of them.  In a later telephone call on 27 June 2015, you advised Mr Black that you had been unsuccessful in obtaining the boots.

20On 24 July 2015, you gave a further statement to the police associated with their investigation of the events.

21A couple of days after 25 May 2015, information came to the police that a recently dug hole had been found in the vicinity of Mr Black’s property.  From this, the police drew the inference that the assault was pre-planned and some later stage Mr Black was charged with attempted murder.

22The informant, Detective Johnson, gave evidence that when he spoke to you in order to obtain a statement on 1 June, he advised you that an excavation had been found.  You gave evidence that you had heard rumours, but were not clear about it at that stage.

23In early January 2016, you were called into the Wonthaggi Police Station office by the informant, ostensibly to collect some of Mr Black’s property.  Upon your arrival, you were arrested.  You were then interviewed in relation to a possible charge of attempting to pervert the course of justice.

24In that interview, which was video recorded, it was put to you that you knew that the boots may be evidence in the forthcoming trial of Mr Black.  You were equivocal in your responses in the record of interview as to whether you were aware that the boots may be of evidentiary value to the police.

25After the interview, you were fingerprinted.  After emerging from that, you spoke again to the informant and told him that you had told some lies in the record of interview that you had undertaken and wished to be interviewed again.  He declined to do so, but said he was prepared to take a statement from you.  He handwrote a statement which you signed as true and correct, in which you admitted that you are aware that the boots might be of assistance to the police.

26The prosecution relied on the record of interview and the statement in the case against you.

27Mr Black was convicted of two counts of attempted murder and attempting to pervert the course of justice on 25 June 2016.  He was subsequently sentenced to a significant term of imprisonment in October 2016.  You gave evidence in the course of the trial.  Mr Black was sentenced to three months imprisonment for the offence of attempting to pervert the course of justice.  The sentence was made concurrent with the other sentences.

28In February 2017, you were charged on summons with attempting to pervert the course of justice.

29You were committed for trial and as I have indicated, you were self-represented.

30After I had ruled against you in relation to various standing matters, you sought to have the statement that you had signed, after the record of interview, excluded on the basis that you had been the subject of duress at the hands of the police officer, the informant, Detective Johnson.

31You asserted that Detective Johnson had indicated to you that he had done a deal with a Magistrate in relation to the charge against you and that you needed to provide a statement as part of the deal.  You maintained that you were coerced by his conduct and statements that he made and provided the additional statement.  In a voir dire before the trial, Detective Johnson denied any improper conduct.  I ruled that the statement should not be excluded.  

32The trial proceeded and you again gave evidence that you had been the subject of duress in relation to the statement.  You called Mr Black’s mother in support and she gave evidence that you had told her around the time of the record of interview, that you had been the subject of the duress.  You produced two statutory declarations made by you making a similar assertion.  The prosecution submitted that these were fabrications and should not be given any weight by the jury.

33The jury must be taken to have not accepted your account that the statement was made under duress and by majority, they found you guilty of the offence – no doubt relying on your partial admissions in the record of interview and your full admission in the statement.

Assessing the Seriousness of the Offence

34The offence of attempting to pervert the course of justice is inherently serious as it strikes at the system of justice.  The seriousness is reflected in the 25 year maximum penalty.

35The offence can be committed in a wide variety of circumstances.  Those circumstances include what is sought to be achieved by the relevant offender and the connection of that offender with the system of justice.

36Here, I am satisfied that the proponent or instigator of the offence was Mr Black. You responded to an instruction from him.  He had been charged with serious offending at the time and you were a cooperating witness for the prosecution. It was not suggested that you were involved in the offending.  Mr Black had a very significant interest in being acquitted of the charges.

37As you were his long-term partner and managing his affairs while he was on remand, it is not surprising that he turned to you.  It was in those circumstances that he requested you collect the boots and the phone next time you were at the MRC and you agreed.  You did attend to collect them a couple of days later and as I have indicated, the boots were already in the possession of the police.

38The offence was complete when you attended at the MRC.  Thus there was some premeditation involved.  While the boots may have formed some part of the prosecution case, they could not have been seen as central to the case against Mr Black.

Sentencing Considerations

39In a comprehensive submission, your counsel put a number of matters in mitigation.

40Your personal circumstances are that you are the oldest of two children from the Turtons Creek area.  Your parents were in Court to support you.  You graduated from the local secondary college in 2008 and were studying at Swinburne between 2010 and June 2011.  You commenced your Bachelor of Nursing training at Monash Gippsland in February 2012, and graduated in November 2014.  Since February 2015, you have been working at the La Trobe Regional Hospital as a graduate nurse and as a Registered Nurse from January 2016.  You remain employed there.

41In mitigation, your counsel referred to your relative young age and the fact that you have no prior convictions.  I regard both those matters as significant.

42I also regard it as significant that the offending arose out of your long-term relationship with Mr Black.  There is a very large age gap between the two of you and you had commenced to know him when you are aged 16 years.  He had prior convictions, including for violence that were referred to in Justice Jane Dixon’s sentencing remarks. In those remarks, Her Honour also mentioned that Mr Black had supported you in your nursing studies.  Her Honour also mentions that Mr Black was drinking heavily in the period up until the offending and had sought medical help for his mental health problems for alcohol use, anxiety and depression.  In a medical report, his interpersonal and behavioural adjustment was described as problematic, with prominent features of a narcissistic and antisocial personality disorder.

43These matters support my conclusion that there was an inequality in the relationship between the two of you, and disparity in your roles in this offending, that calls for a lesser sentence than that imposed upon Mr Black.

44The prosecution submitted that given the seriousness of the offence, this called for a term of imprisonment, although it was conceded that a combination sentence would be in range, given some of the cases raised by your counsel.

45I regard the most significant sentencing factor here is the relative disparity in the power relations between you and Mr Black.  This makes considerations of parity with his sentence less salient.  Justice Dixon described the objective seriousness of Mr Black’s offending, in relation to this offence, as at the low end of the range.

46As I have indicated, he was the instigator of the offence and I put your culpability as lower than his.

47You have the benefit of having no prior convictions.  In addition to that, your counsel tendered a number of references from work colleagues and also from family members and friends.  They support the proposition that this offending was very much out of character.  They support the conclusion that your prospects of rehabilitation are excellent.

48At present, you are a member of the nursing profession and are in good standing.  The conviction alone may impact on your ability to continue in that profession.  That itself is punishment.

49In a letter to the Court, you indicate that at the time of the offending, you were physically and emotionally exhausted and overwhelmed, as you addressed the issue of Mr Black being in custody.

50You indicated that you were too ashamed to advise your parents that you had been charged for a considerable period, and thus had to bear the burden of the matter on your own.  In evidence were medical records indicating that in March 2017, you sought assistance for depression and anxiety from a local doctor and were referred for a mental health care plan.

51You also stated in that letter that you are deeply sorry to everyone that your actions have impacted on.  You are deeply ashamed of the position that you have found yourself in.

52You pleaded not guilty and so do not have the benefit of the remorse associated with such a plea.  You did, however, effectively admit the offence in the second statement taken by the police.  In addition, you fully cooperated in what was a very short trial, save for the baseless jurisdictional arguments you raised at the commencement of the trial.

53Notwithstanding your plea of not guilty, on the basis of your letter to the court, and the sentiments which are confirmed in letters from your parents and from your nursing colleagues, I am prepared to accept that there is some remorse for your conduct.

54This is relevant to your prospects of rehabilitation which I have described as excellent.  Those factors are also relevant to the issue of specific deterrence which I regard as having of little weight.

55The principal sentencing considerations in a case like this are general deterrence and denunciation.

56All attempts to undermine the system of justice, whether it be tampering with witnesses, or interfering with possible evidence, must be utterly condemned.  It is a sad fact that many of these offences are committed by family members or those in relationships with the principal offender.  This is what happened here and caused you, a person of otherwise good character and high standing in the community, to be dragged into the vortex of the criminal justice system.

57Your conduct in seeking to assist Mr Black must be utterly condemned.

58In sentencing you, I must apply the principle of parsimony.  While imprisonment is frequently imposed for this offence, in a limited range of cases a non-custodial option can meet all sentencing principles.  I am satisfied in this case, given the circumstances of the offending, your relative youth and your previous good character that the community sanction of last resort ought not be imposed.  I have had you assessed for a Community Corrections Order.  You have found to be suitable.  You have indicated that you are prepared to enter such an Order.

59Should you be prepared to enter such an order, I propose to convict you and impose a nine months Community Corrections Order on you, with a condition that you undertake 100 hours of community work and you be under supervision of the Community Corrections Office.  I will have the paperwork produced.  I would ask - well your counsel can discuss it with you and advise you of it on the link and maybe Mr Moore and then after you have signed the document, we will reconvene.

60HIS HONOUR:  Ms Sacco you have signed the document.  As I say, the conditions of it, they are mandatory.  You have got the document, you have got to report to the Morwell office within two business days, you can go down there now.  If you commit an offence in the next nine months, that is a breach of the order.  You have got to advise them of your changes of address, you have got to do the 100 hours community work, you have got to be under supervision of the Secretary for the period of nine months.  So you are convicted and put on this order for nine months and to do the community work.  If you do not do the work, or you do not tell them your change of address or you do not turn up for supervision, when they ask you to, that will be a breach, you will come back to me.  I will come and make a special trip up and might lock you up.  You understand all that?

61OFFENDER:  I understand.

62HIS HONOUR:  All right, well you might be able to put this in the past.  I thank you for your assistance Ms Walker.

63MS WALKER:  Thank you, Your Honour.

64HIS HONOUR:  And your predecessor Mr Moore, - - -

65MR MOORE:  I'll pass that on.

66HIS HONOUR:  - - - Mr Hutton, and I think that is the end of the circuit.

67MR MOORE:  It is.  Thank you, Your Honour.

68HIS HONOUR:  All right, well I want to thank you Mr Moore for your participation in the circuit.  We got through a bit of business and Mr Hutton and his instructing solicitor, we got through a bit of business with them and your instructing solicitor.

69MR MOORE:  Thank you, Your Honour.

70HIS HONOUR:  Adjourn sine die.

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