Director of Public Prosecutions v Smith

[2015] VCC 1213

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00761

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL PETER SMITH

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2015
DATE OF SENTENCE:	2 September 2015
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2015] VCC 1213

REASONS FOR SENTENCE
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Subject:  Sentencing; attempt to pervert course of justice;

Catchwords:  Aged 24 at time; attempt to postpone trial using untrue excuse about own health

Legislation Cited:     Sentencing Act 1991 s 6AAA
Cases Cited:            Boulton v R [2014] VSCA 342; Tognolini v R [2011] VSCA 113

Sentence:CCO for 15 months; 125 hours unpaid community work additional to current CCO.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Manning	OPP
The Accused was not represented by Counsel

HER HONOUR: 

1Samuel Smith, you have pleaded guilty to a charge of attempting to pervert the course of justice. 

2This charge arises from your conduct on 31 March last year when you attempted to deceive a judge of the County Court in order to have your trial postponed. The background is that on Monday 31 March 2014, a trial was due to start in which you were charged with rape.  You had lawyers acting for you.  When you attended court you informed your counsel, who in turn informed the court, that you were suffering from a medical condition; that on the previous Friday you had received results from tests carried out two weeks earlier on a growth on your back, the results showing that it was malignant.  Further, you told your counsel who told the judge that the earliest appointment you could obtain with an oncologist was in the following week.

3Your trial counsel told the judge that she might seek an adjournment of the trial, at least for long enough to enable you to obtain medical advice as to treatment.  The judge pointed out, and your counsel agreed, that there would need to be some medical evidence available for consideration of an adjournment application. The court was stood down for more information to be obtained, and by early that afternoon, process was put in place for the judge's associate to facilitate the urgent obtaining of medical records from the hospital where the judge was told you had had the tests carried out.

4You were in court whenever the judge was told or asked anything of your lawyer about the circumstances, and maintained the deception when on several occasions during that day matters were requested by the judge.  Indeed you signed an authority for release of your medical records to your lawyers.

5You had not in fact had such a serious diagnosis.  On the contrary you had a skin lesion removed a couple of week earlier and it was found to be benign.   It seems that is what gave you the idea to pretend that you had received a result or diagnosis that it was malignant.

6The trial was adjourned until the following morning and when you returned home, you told your mother what you had done.  Apparently you had already realised yourself that what you had done was stupid, and your mother urged you to tell the truth and contact your lawyer to that effect.  Apparently you contacted your lawyer later that day and when the case was resumed the following morning the judge was informed that you withdrew your application for an adjournment.  By then the hospital had reported that it had no record of you attending since the previous year, so the deception was already uncovered.

7Your reasons for this deception were that you felt so stressed and overwhelmed by the imminent start of the trial for a charge of rape, which you denied, that you wanted it postponed to give you more time to come to grips with facing it.

8I accept that at the age of 24 as you were, and facing such a serious charge, you were likely to be feeling very stressed at that stage. Your mother's evidence before me confirms that the pressure and seriousness of being charged with rape, and the whole period from then until the trial, had weighed on you and you had become very withdrawn from friends, and also family and anxious, and she says you were not always willing to eat.

9She also said that you used to be much more confident.  My impression is that you were, and probably still are, an immature young man, and that under the stress and fear of the seriousness of a trial for rape, you told this false story.  My impression is that it was spontaneous rather than planned. It was certainly not sophisticated, and indeed was not likely to succeed in its purpose once the judge indicated that she would require medical verification of the need for the potential adjournment. However, it was your intention to bring about an unjustified adjournment, rather than whether it succeeded, which is important for me to consider.

10I also regard as concerning that you thought to use the gravity of a diagnosis of cancer or malignancy as a ready excuse.  As you yourself had apparently recently undergone testing for a skin lesion which proved benign, it is not to your credit that you would twist that into this story rather than be thankful for the result you did obtain.  To use the fear of most people of such a medical condition was cynical, although I am not sure whether you are mature enough to have thought about that.

11The charge of attempting to pervert the course of justice is taken very seriously by courts.  Attempts to pervert the course of justice may take many forms, but fundamentally they all strike at the integrity of the system of justice in this state, and if that is undermined so is the public confidence in that system.

12There is no doubt that an important sentencing factor for an offence of this type is to send an unequivocal message that people who commit this offence can expect serious punishment.  That is what we call general deterrence as a sentencing principle.

13As was discussed during the hearing today, the maximum penalty for this offence is 25 years' imprisonment.  As that is the second most severe sentence available in this state, short only of life imprisonment, it would normally be regarded as indicating that offences of this nature are extremely serious.  However, courts have noted that the maximum penalty for this particular charge is probably of less guidance than it would be on other charges. Indeed, there has been a law reform recommendation for it to be reduced to 15 years' imprisonment, so it has been held that that might be a better guide.

14A table of cases and the sentences imposed, which was attached to the Court of Appeal in the 2011 decision of Tognalini v R[1], a copy of which has been provided to you, indicates that terms of imprisonment have been imposed on many occasions for charges of attempting to pervert the course of justice.  Nevertheless, so have non-custodial sentences.  Further, since changes in sentencing options including the introduction of Community Corrections Order shave been made in the Sentencing Act, and the guideline decision in the Court of Appeal case of Boulton[2], the availability of a community corrections order may be regarded as having changed the trend of those cases in which imprisonment was imposed.

[1] Tognolini v R [2011] VSCA 113

[2]Boulton v R [2014] VSCA 342

15I must assess the objective seriousness of your offending.  As I have said, conduct which is carried out with the intention to mislead a court must be taken seriously because it strikes at the integrity and public confidence in the justice system. A case where you attempted to deceive the court to gain a postponement, however, is not one where you approached witnesses or tried to intimidate them or otherwise tied to interfere with evidence. In your case it can be said that the deception was deliberate but not very sophisticated or planned.  Although you maintained the lie during the course of the day before the court, you did tell the truth later that day, telling your mother on arriving home, and later your lawyer who informed the court the next morning.  The lie on your part was therefore not maintained for more than the course of the day at court. The result was that your conduct caused two days of adjournments in the trial, which inevitably will have cost the court system through actual costs, the costs of the lawyers for both prosecution and defence, and any such delay has a flow on effect onto other cases which might have been reached in the lists.  The complainant in the case was kept waiting longer before giving evidence.  Nevertheless the trial was able to proceed, and indeed you were acquitted.

16I take into account that at the time you committed this deception you were on bail and indeed on a community corrections order the duration of which had been extended due to a previous breach for unsatisfactory compliance.  Both of those features will normally be regarded as aggravating factors, and they ought to have heightened your awareness that you were required to be on very good behaviour.  Nevertheless, in the circumstances the offending was in a sense interrelated with the bail, because you were on bail for the offence for which you were about to stand trial.  Your attitude towards your community corrections order does not do you credit overall, but I will mention further about that shortly.

17You were aged 24, and being relatively young and facing trial on a very serious charge which you denied, you felt overwhelmed with stress and fear of what might result.

18You pleaded guilty to this charge and are entitled to considerable leniency for that.  You have represented yourself throughout this matter, that is, on the charge of attempting to pervert the course of justice.  A plea of guilty was indicated by you prior to any witnesses being required to give evidence at the committal hearing.  The plea also avoided the time and cost of a disputed trail. That reflects cooperation with the justice system on this charge, which is significant given the charge, and also reflects that you have accepted responsibility for your offence. I also take from the full admissions that you made when interviewed by police about this matter in October 2014, that you accepted responsibility for what you had done at that stage, conceded it was a very bad decision, bad judgment by you, and stupid, and that you were suitably remorseful from that stage.

19Although there is no medical substantiation of any clinical condition from which you were suffering at the time, I accept that at age 24 and facing such a serious charge as rape you were likely to be feeling under very considerable stress and this is likely to have affected your judgment and caused you to panic. That goes to explain how you came to commit the offence.  It is not mitigating of the offence or your role in it.

20I turn now to your personal circumstances.  You are now aged 26, but were still 24 at the time of this offence.  You live with your mother in Carrum Downs.  She works as a machine operator, and as she says she does not earn big money, and from it supports herself and you, as you have had no steady income for a considerable period.

21You tell me that you left school during Year 12 and joined the Australian Defence Force as you wanted to join the army. After a year you were discharged on medical grounds due to a leg injury.  You apparently sought counselling at that time, feeling deeply disappointed.  You say that you would like to be accepted back into the army.  Whether that is possible with your criminal history is for the Army to decide, not only in respect of this charge but of course prior offences.

22After leaving the Army you got work as a roof tiler, and also say that, although untrained, you worked for a caravan making company JayCo as an electrician.  You then took up industrial printing, again only trained on-site, but the company with which you worked for different periods, and most recently earlier this year, ultimately became fully automated, so there is no work in that field for you. Your work there was interrupted by periods when you felt too stressed because of the charges hanging over you to work. 

23You have recently sought out further training to assist you to obtain employment, and you have produced certificates to me with a course outline for a course you started last week and hope to complete over the next two weeks. You say the same company has some further training you wish to undertake. You are apparently doing that training five nights a week during the evenings, but do not at present have paid employment.  It is to your credit that you see that you need to obtain qualifications and look for further alternative forms of work.

24You cannot claim to come before the court with an unblemished history.  You have a prior criminal history which commenced in 2010 with a series of driving offences which although mainly of a different nature, did relevantly include one charge of stating a false name and address.  That is relevant because it involves deception.  The following year you were convicted of theft of a motor vehicle which also is regarded as an offence of dishonesty.

25In 2012 a consolidation of different charges covering some of violence, some of driving, and again including a charge relating to deception by stating a false name, resulted in you being sentenced in a Magistrate's Court to a Community Corrections Order.  That order was to last two years. That order included rehabilitative conditions to address what apparently were both alcohol and drug abuse by you at that stage, and which had contributed to your offending.  It also included 200 hours of unpaid community work as a penalty.

26Some nine months later, you were found guilty of breaching that order by non-compliance, and its duration was extended.  You still had 189 hours of community work to perform at that stage.  You today tell me that although you have completed more of those hours, the number of hours was increased when you converted fines into community work, which I take to include the fine for breaching the community corrections order and also an earlier fine imposed in 2010. 

27You tell me that you have 100 hours still to perform.  You said you returned to the court at the end of last year to have the time extended and that it is due to expire at the end of 2016.

28You tell me that your offending all occurred after your disappointment in being unable to continue in the army, and that as a result you had taken up with a bad crowd.  You say you were drinking heavily, taking drugs, and engaged in reckless conduct in company with these other people or groups of others.

29You have apparently completed both drug and alcohol counselling as part of your Community Corrections Order, and you say that you have ceased using drugs and alcohol, that you do not go out much, and have resolved to get onto with your life in a constructive way.  At your age it is in the community's best interests that you do manage to establish a constructive and law-abiding lifestyle, and so in my view your rehabilitation is of importance as a sentencing factor here, despite you having past offences as well as the charge on which I must sentence you.

30I had you assessed for a further Community Corrections Order today.  I have already noted that your record reflected poor performance on the original CCO imposed on you in October 2012. The report informs me that you were brought before a court a second time for non-compliance with the order, that being last November, when 189 hours of community work was still outstanding of the original 200 hours imposed.  The order was extended until November 2016. You have now apparently completed satisfactorily the drug and alcohol counselling conditions, and are doing reasonably in the unpaid work.

31If as you say your main aim now is to put all of this behind you and get on with your life, and involved in that is finding employment to support yourself, you need to apply yourself to completion of the existing CCO more intensely.  Nevertheless, you have been found suitable for a further CCO, and although I am concerned at how slowly you have managed to work your way through the previous unpaid community work on the previous CCO, I have decided that in all of the circumstances a further CCO is the appropriate sentence in your case.  It must include substantial further unpaid work as your penalty to send a significant enough message to others, and to you, that this offence was serious even though it had modest delaying effect. Your penalty still needs to show that offences aimed at deceiving the justice system will result in serious penalties.

32Would you stand up now please.

33Samuel Smith, on the charge of attempting to pervert the course of justice, you are convicted and placed on a community corrections order to last 15 months from today.  The conditions I impose are, first, that you perform 125 hours of unpaid community work.  Secondly that you be subject to supervision.  Thirdly that you attend for assessment and to attend any programs recommended by Community Corrections officers to reduce the prospects of you committing further offences.  It is entirely in the hands of Community Corrections officers whether they do recommend any such programs and what the nature of those would be.

34Now in addition all usual terms of a Community Corrections Order will apply. I know you are familiar with those but I must remind you of them which I will do briefly.  You are to first to attend within two clear working days the nearest office- that is the Frankston Community Corrections Office, that means by 4 pm this Friday 4 September. You must submit to visits and obey all lawful directions of Community Corrections officers.  You must inform Community Corrections officers of any change in your address of where you live or where you work and that includes if you obtain work.  You must not leave the state of Victoria without first obtaining permission from Community Corrections officers.  And most importantly you must not commit any other offence during the currency of the Order, that is for the 15 months that this order will last.

35If you breach that order either by non-compliance or by any further offending, you can expect to be brought back into front of me.  Depending on the circumstances, the powers I have include, as you have already learnt, variation of the order by extending its time or extending its terms.  I could also cancel the order and resentence you on the offence.

36I realise given that you say you have 100 hours still to do, that the number of hours I have imposed may seem daunting to you given your history with the unpaid work on the last order.  However I have imposed an amount, as I have said, to sufficiently convey the seriousness of the offence that you committed.  You do not get a discount of that amount for having failed to complete past community work sooner, and that is why I have imposed that amount.  If you are correct it is 100 hours you still owe on the first one, plus what I impose on this order, that means that you are now going to owe 225 hours.

37OFFENDER:  Understood Your Honour.

38HER HONOUR:  Now you are able to apply to vary the order if there are circumstances that warrant that, that interfere with your ability to complete it.  But you should do that before you have breached it.

39OFFENDER:  Yes Your Honour.

40HER HONOUR:  Do you understand all of the terms of the CCO?

41OFFENDER:  Yes I do Your Honour.

42HER HONOUR:  Do you agree to comply?

43OFFENDER:  Yes I do.

44HER HONOUR:  All right.  I state, I am obliged to state because you pleaded guilty and you have been given a discount for doing so, what your sentence would have been had you not pleaded guilty but been found guilty of this offence by a jury.  It is an artificial estimate for me to make, but if you had pleaded not guilty and been found guilty of this charge by a jury I would have imposed a sentence of three months' imprisonment. 

45Just take a seat, the order, the community corrections order will be prepared. 

46MR MANNING:  Your Honour perhaps while we wait, can I just confirm that Your Honour intended for the 125 hours to be served cumulatively upon any existing hours?

47HER HONOUR:  Yes, yes.

48MR MANNING:  Yes, thank you.

49HER HONOUR:  Do I need to say that this - sorry it is not a cumulative CCO in the sense of the time ‑ ‑ ‑

50MR MANNING:  No, the duration but the hours.

51HER HONOUR:  ‑ ‑ ‑ and the duration I intended to effectively overlap with the existing one.

52MR MANNING:  The current duration however cumulative hours is my understanding.

53HER HONOUR:  Concurrent in duration, but cumulative in hours, yes I certainly ‑ ‑ ‑

54MR MANNING:  Thank you Your Honour.

55HER HONOUR:  ‑ ‑ ‑ that is what I was pointing out to Mr Smith, it is a total of - if he is right that it is 100 hours that is still owed, that is not in the report, but if he is right that 100 hours is still owed under the other one, he will now have 225 to do.

56MR MANNING:  Yes thank you Your Honour.

57HER HONOUR:  If you have got a suggestion of how we specify that in maybe in other matters that the unpaid community work imposed is in addition to unpaid community work not yet completed on a previous CCO.

58MR MANNING:  Yes, yes and it is on the transcript now as well.  It was really just because I understand this presumption that it is concurrent unless Your Honour otherwise specifies.

59HER HONOUR:  Yes, yes, no well I meant the duration to be concurrent but certainly not the number of hours because as I said you do not get a discount for not completing the other one on time.

60MR MANNING:  Yes, thank you Your Honour.

61HER HONOUR:  All right.  Let me just check the terms of this.  Your street name is spelt S-z-e-r, is that correct?

62OFFENDER:  Yes it is Your Honour.

63HER HONOUR:  Yes.  That is No.13?

64OFFENDER:  Yes.

65HER HONOUR:  All right.  The draft of the order here I will just ask Mr Davis to have Mr Manning check and then taken to Mr Smith to check.

66MR MANNING:  Yes, Your Honour.

67HER HONOUR:  But that is not the copy you sign Mr Smith we will just wait for that to come through.

68MR MANNING:  Yes thank you Your Honour.

69HER HONOUR:  We cannot put anything additional into that - have a look at that Mr Smith but you do not sign that one yet, a copy will be coming to you.  We will put into the actual order a notation that it is addition to, the hours are in addition to the others.

70MR MANNING:  Thank you.

71HER HONOUR:  That is the copy to be signed, my associate - do you understand?

72OFFENDER:  Yes, yes I do.  Just one question.

73HER HONOUR:  Yes?

74OFFENDER:  With the time frame, does that stack on top of the existing time frame?

75HER HONOUR:  No it is concurrent with it ‑ ‑ ‑

76OFFENDER:  Okay.

77HER HONOUR:  ‑ ‑ ‑ so you have got to set about ‑ ‑ ‑

78OFFENDER:  I have an appointment with my case worker tomorrow at 2 pm.

79HER HONOUR:  Yes?

80OFFENDER:  And I intend on getting at least 24 hours a week done.

81HER HONOUR:  Yes, that would be - it will go if you set about doing it at that rate.

82OFFENDER:  Yes.

83HER HONOUR:  Whilst you are doing a night course you might be getting tired ‑ ‑ ‑ 

84OFFENDER:  Yes.

85HER HONOUR:  ‑ ‑ ‑ but you can, you know you have got the time available to be working during the days.

86OFFENDER:  Yes, Your Honour.

87HER HONOUR:  A copy of that will be, I do not know whether it is faxed or emailed nowadays, to Frankston Community Corrections Office.

88OFFENDER:  Yes.

89HER HONOUR:  It can even be put to the attention of your case worker, so she will have that also, and I am just checking the actual terms of the order now so that it is made clear that the - yes the order commences today and that is what it says up the top and ends on 1 December 2016.

90OFFENDER:  Thank you Your Honour.

91HER HONOUR:  If you, because of work commitments, if you get employment or medical matters and you have got the appropriate medical certificates to confirm that, if you are unable to complete the work in the time, you are able to, as I have said, apply to the court, apply back in front of me to vary it, to extend the time ‑ ‑ ‑

92OFFENDER:  I understand that.

93HER HONOUR:  ‑ ‑ ‑ or even vary the number of hours if that is warranted by reason of a medical condition or something like that.

94OFFENDER:  Yes.

95HER HONOUR:  But what you do not do is ignore it until it expires and you are found in breach.

96OFFENDER:  Yes.

97HER HONOUR:  You face the need to get on with doing it and completing it.  And once those hours are completed, they are completed.

98OFFENDER:  I understand that Your Honour.

99HER HONOUR:  It is then up the Community Corrections officers whether they still require you to attend for supervision, because that does last till the end of the order.

100OFFENDER:  Yes.

101HER HONOUR:  All right.  I will now sign that community corrections order and it will be copied so that you have a copy Mr Smith and the prosecution does.  All right.  These being a matter heard on an indictment in the County Court, the exhibit that you have tendered will be held for the appeal period.  Now do you need access to that document?

102OFFENDER:  No I do not Your Honour, I have copies.

103HER HONOUR:  You have got copies?

104OFFENDER:  Yes.

105HER HONOUR:  Good.  They will be - if an appeal is lodged, they will be retained and provided to the Court of Appeal, and if there is no appeal lodged they will be returned to you after that time has expired, just by post I think.  But if you needed a copy we could have one made.

106OFFENDER:  I have a copy.

107HER HONOUR:  You have got copies?  All right.  It was the SET documentation.  All right.  Mr Smith you can leave the dock, that is the end of your matter.  I hope I do not see you again, because if I see you again it is probably because - well I hope I do not see you on a breach of it but I tell you again, it is not that you can string these things out forever, but if you have got legitimate reason that you cannot complete the terms it is best to apply for a variation and not wait for the Community Corrections officers to bring a breach or a contravention application.

108OFFENDER:  Understood Your Honour and thank you.

109HER HONOUR:  All right.  Can we adjourn then till - what are we?  10.30 tomorrow.

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