Director of Public Prosecutions v Sahdev

[2017] VCC 1025

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00575

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMIT SAHDEV

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2017
DATE OF SENTENCE:	28 July 2017
CASE MAY BE CITED AS:	DPP v Sahdev
MEDIUM NEUTRAL CITATION:	[2017] VCC 1025

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Plea of guilty to one charge of attempt to pervert the course of justice – offender wrote false letter designed to avoid restoration of suspended sentence – offender aged 43 with prior convictions of similar type – dependence on alcohol until drinking ceased following serious accident – traumatic brain injury – physical impairment and cognitive deficits – unable to work – requires support with daily tasks – Verdins limb 5 applies.          

Cases Cited:Verdins v R

Sentence: 12 month CCO        

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorpe	OPP
For the Accused	Ms K. Ballard	Doogue O’Brien George

Pages 1 - 6

 

 

HER HONOUR:

1Amit Sahdev, you have pleaded guilty to one charge of attempting to pervert the course of justice.  This is a serious charge for which the maximum penalty is 25 years' imprisonment.  The circumstances of this case mean that a sentence of imprisonment can be avoided and a Community Correction Order can be imposed instead.  I shall set out the circumstances of the offending and refer to your personal circumstances as well.

2You are  a 43 year old single man, born and raised in India, where your family still lives.  You came to Australia in 2000 to study and you completed a master's degree in Business Studies. 

3While studying, you worked in the carwash industry and rose to become a manager in the business where you worked for 11 years.

4Clearly, you had sound intelligence and a good worth ethic.  But unfortunately, you began drinking heavily in about 2002.  It seems that that happened in the context of your work environment. 

5You married in 2006 but that ended in 2016.  Over those years you become dependent on alcohol and eventually had to enrol in Alcoholics Anonymous to overcome it.

6Your short criminal history relates totally to driving and related offences.  Of particular relevance is the appearance at Sunshine Magistrates' Court in 2010 for a list of offences, including making a false report to police and perjury.  You were sentenced to a four month suspended sentence with an operational period of one year as well as a Community Correction Order.  You had driven in a dangerous manner while trying to avoid a booze bus and had committed a number of serious traffic offences in the process of fleeing.  Soon afterwards you falsely informed the police that your car had been stolen in order to avoid the fact that you were the driver and you then made a sworn statement at the police station, admitting that you were in the car but nominating another man as the driver. 

7On 18 October 2012 in Sunshine Magistrates' Court, you had been convicted of driving whilst disqualified and exceeding the prescribed concentration of alcohol and you were placed on a three month suspended sentence, operational for 12 months.         

8Turning now to this offence, you appeared at Werribee Magistrates' Court on 18 September 2015, pleading guilty to driving whilst disqualified and using a handheld mobile phone on 27 February 2013.  This was in breach of the suspended sentence imposed on 18 October 2012. 

9Magistrate Mr Fitzgerald adjourned the case until 7 October 2015 and on that day you tendered, through your counsel, an unsigned letter purported to have been written by Mr Roger Bellagio.  In fact, you had written this letter.  The letter contained details of your attendance at Alcoholics Anonymous and was tendered in support of your argument that there were exceptional circumstances as to why the suspended sentence should not be restored, which would have resulted in your imprisonment. 

10On 27 October, the case resumed but was stood down.  The informant made enquiries into the letter and discovered that it appeared to have been written by Mr Roger Ludgrove, not Roger Bellagio.  The informant told your counsel,
Mr Danos, and you rang Mr Ludgrove, telling him that you were using him in terms of a reference.  Mr Ludgrove replied, "Yeah, fair enough."  When the court reconvened, Mr Danos explained this to the court, adding that the surname was wrong and, in that regard, accurately it was an innocent mistake. 

11Mr Ludgrove made a statement to the police soon afterwards and said he had not known anything about the letter prior to being telephoned by you on
27 October.  He also said that he told you in that call that if he had been asked, he would have written a letter of reference for you, confirming that you had attended AA meetings, but you had not asked him.

12On 8 December 2015, you appeared unrepresented at the Magistrates' Court and called Mr Ludgrove to give evidence.  He clarified the contents of the letter you had written, saying that he had seen you at AA meetings once a month from October 2014 until you stopped attending by the new year.

13The letter you had written had exaggerated the extent of your attendance at AA.  However, the magistrate did not restore the suspended sentence but extended it for 12 months.  Just before that hearing, you had been interviewed by the police and were charged with this offence. 

14Returning to your personal circumstances, in August 2016, you had a bad accident, falling down a flight of stairs, resulting in unconsciousness and sustaining a brain injury.  You were hospitalised for a time, followed by months of in-patient rehabilitation and are still recovering.  You have been left with cognitive deficits and a tendency to suffer seizures which require admissions to hospital. 

15You are no longer able to work, at least not in the foreseeable future, and have had to have support with many tasks of daily living.  You are now living in a share-house and have a good support network.  Indeed, one of your housemates attended court with you today.  You still require physiotherapy for the spasticity in your limbs and there is the possibility of injections to assist with this.  A range of documents was tendered which confirm your diagnosis and describe your treatment and your prognosis.

16You were recently assessed by a neuropsychologist, Dr Rachel O'Meara, who identified your traumatic brain injury and following testing, she identified an extensive range of cognitive deficits, some of which would make a term of imprisonment more difficult for you than for others not suffering from such deficits. 

17It was submitted by your counsel that despite the seriousness of the offence, you could be assessed as to your suitability for a Correction Order.  The appropriateness of that disposition was conceded by the prosecution once the contents of Dr O'Meara's report was known. 

18That assessment has been done, of course, and you have been found suitable.  The order will, in the circumstances of this case, be adequate to send a message to others that such behaviour will not go unpunished and will also be sufficient to deter you from future offending. 

19As I said earlier, this offence attracts a very long prison sentence as a maximum penalty because it goes to the heart of the justice system.  The system and the community rely on a certain degree of trust in order to function properly and abuse of that trust is a fundamental breach. 

20In writing the letter, you attempted to deceive the court with falsehoods and that deserves punishment.  It was not the first time you had set out to deceive the authorities which, it might be said, does not augur well for your rehabilitation.  However, in deciding to avoid imprisoning you, I take account not only of the persuasive factors stemming from your injury but also the fact that the learned magistrate saw fit not to restore the suspended sentence. 

21It was submitted to me today that you had experienced an overwhelming fear of imprisonment at the time you wrote the letter and you had planned and implemented this misguided attempt to present a false version of the facts to the magistrate.  The irony was pointed out by your counsel today that
Mr Ludgrove would have written a reference for you if you had asked him, one that could have truthfully set out the circumstances of your attendance at AA and brought about the desired result.  Perhaps this should be a lesson for you in trust. 

22The Community Correction Order will begin today and it will last for 12 months.  The conviction will be recorded.  You will be under supervision and you will have to be assessed for treatment for abuse of alcohol in order to monitor your sobriety and your cessation of drinking.  You will also be assessed for any necessary mental health treatment such as psychological counselling and for any other program considered necessary for your rehabilitation. 

23In view of your disabilities, I have not required that you perform any community work.  You must report to the Correction's office at 81 Burgundy Street, Heidelberg, within two working days of today, that is by 4 o'clock on 1 August, which is next Tuesday. 

24The prosecution has applied for a forensic sample of saliva to be obtained under s.464ZF of the Crimes Act and through your counsel, you oppose that.  In view of your prior convictions for similar offending, I have concluded that the making of the order is justified and that it is in the public interest to do so.  Accordingly, you must provide a sample of saliva to the police and they have the power to use reasonable force to obtain that sample but I trust that will not be necessary.

25The order is ready for you to sign now. Ms Ballard, would you like to have a look at that?

26MS BALLARD:  Your Honour, while that is happening, might I just raise one very brief matter?

27HER HONOUR:  Certainly.

28MS BALLARD:  I just raise this in the interest of being transparent and not wanting to mislead the court at all.  The reference that was prepared by his friend, Mr Gambier, who is here today. I incorrectly said that they were living together now.

29HER HONOUR:  I see.

30MS BALLARD:  They have lived together in the past and are still friends.  It was pointed out to me by Mr Gambier afterwards, that I had misheard that in taking instructions from them this morning. 

31HER HONOUR:  Well, he was a housemate, even if he is not now.

32MS BALLARD:  That is right, I just wanted to point that out.

33HER HONOUR:  Well, thank you very much, Ms Ballard.  That is fine.

34MS BALLARD:  Thank you.  If I might be temporarily excused from the Bar table, Your Honour?

35HER HONOUR:  Yes, certainly.  Anything further?

36COUNSEL:  No, Your Honour.

(Community Corrections Order signed and acknowledged)

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