Director of Public Prosecutions v Stephens

[2024] VCC 196

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01785

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW STEPHENS

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2024
DATE OF SENTENCE:	20 February 2024
CASE MAY BE CITED AS:	DPP v Stephens
MEDIUM NEUTRAL CITATION:	[2024] VCC 196

REASONS FOR SENTENCE

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Subject:Criminal Law – sentence – guilty plea

Catchwords:              Sentencing – attempt to pervert the course of justice – knew who you were impersonating – relevant criminal history – co-offender’s role was more serious and significant – very significant alcohol and drug abuse – chronic health issues – mild autism spectrum disorder – late plea but has utilitarian value – guarded prospects of rehabilitation

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:Total effective sentence 15 months imprisonment with a non-parole period of 9 months; 173 days reckoned as already served; 6AAA: 20 months imprisonment with a non-parole period of 13 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	P. D'Arcy	Office of Public Prosecutions
For the Offender	P. Kounnas	McNally & Gleeson

HIS HONOUR:

1Matthew Stephens, you have pleaded guilty to attempting to pervert the course of justice relating to your conduct on 12 September 2018.

Summary of offending

2The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 29 November 2023.

3In summary, from 2015 to 2017 your brother was in a relationship with the victim, and they had a daughter together. That relationship broke down acrimoniously and there were Family Court proceedings that finalised in 2018.

4On 15 August 2018 your brother sought and was granted an intervention order against his ex-partner prohibiting her contacting him unless it was about child arrangements. In the following days he then created false messages to his own phone purporting to be from her, including a threat to kill him.

5On 3 September 2018 he reported these to police and signed a false statement to that effect. On 8 September 2018 he made a further statement alleging an assault. Police, on the basis of these statements, arrested the ex-partner and remanded her in custody. She was bailed two days later on 10 September 2018. Your brother ultimately pleaded guilty to attempting to pervert the course of justice in relation to this conduct and these two statements.

6Another two days later, on 12 September, your brother changed the contact details on his phone so that any contact made from your phone would be recorded as having come from his ex-partner. You and he then created an exchange of threatening messages between your phone, as if you were his ex, and his phone. You made phone calls to your brother’s phone to make it seem like his ex was also harassing him by phone calls.

7That night your brother again went to police and complained of these further faked breaches of the intervention order. While he was there he sent you a message, 'Go now', and you then called his phone nine times, making it seem like the victim was continuing to harass him. He then sent you another message saying, 'Call me again so it’s seen', which you did twice knowing he was dealing with police at the time.

8Your brother showed his phone and the calls you had made and proceeded to make a further false statement about the messages and calls being from his ex-partner.

9These events of 12 September form the basis of your charge of attempting to pervert the course of justice. Your brother pleaded guilty to and has been sentenced for the same offence relating to his conduct on this day.

10

Thankfully, while investigating this complaint against your brother’s

ex-partner, police discovered that you were the true source of the phone calls and messages.

11You attended Morwell police station on 14 September 2018 where they examined your phone, finding the relevant calls and messages. They arrested you and interviewed you.

12You answered police questions, but you claimed that it was all your brother’s doing and that you did not make any calls or send any messages. You admitted being aware of his ex-partner being arrested previously about an assault due to a complaint by your brother. You explained how your brother’s phone could make incoming messages seem like they came from his ex-partner.

13You also signed a statement that day alleging that your brother had done it all and that your mother had asked you to take the fall for him.

14I have accepted your guilty plea and the admissions implicit in it, namely, that what you told police was not true and that you had actually offended in the way that is alleged.

15

The victim of your offending has made a victim impact statement dated 19 January 2024 (Exhibit A). In it she recounted being arrested,

strip-searched, kept behind bars in cells where the lights never went off, without any privacy. All this, only to be released to face further falsified allegations within days. She has been scarred by the experience, still suffers nightmares and requires psychological therapy. I accept these to be the direct consequences of your and your brother’s offending.

Procedural history

16Following your original arrest you were released pending charge. By March 2021 you were charged and then committed to this court for trial on 19 August 2021.  

17On 26 August 2022 you sought and were given a sentence indication that involved a custodial sentence. You did not accept that indication and your trial was listed for hearing in March 2023 circuit. Due to other matters, however, it was not reached and was ultimately listed for trial in October 2023.

18In the meantime, on 12 July 2023, police executed a search warrant at your home in Prahran. They found various items relating to offences for which you were then charged. They included you using your phone to harass your ex-partner. You and the prosecutor agree that this resulted in you being imprisoned for 31 days, that is, before your bail in this matter was revoked.

19On 31 August 2023 the prosecutor made an application for your bail to be revoked. A judge of this court granted the application and you have been in custody since then.

20In the week before the trial was due to commence in October 2023 you agreed to plead guilty to the offence currently before me.

21In custody, among other things, you have experienced fainting spells and have been assessed in hospital for any medical cause.

22Your guilty plea was entered at a late stage in the proceeding. However, it nevertheless reflects you accept responsibility for your actions and a willingness to facilitate the course of justice. It benefits the community and all those involved in the case by avoiding the need for a trial.

23While your guilty plea is consistent with remorse, I give it limited weight in that respect.

Personal circumstances

24On your plea you relied on the following material:

(i)A report of clinical psychologist Dr Richard Eisenmajer dated 17 September 2021 (Exhibit 1);

(ii)Your curriculum vitae and work certificates relating to your work history (Exhibit 2);

(iii)Character references addressed 'To whom it may concern' by Ms Arbuthnot dated 8 July 2022 and Mr Hill dated 8 June 2022 (Exhibit 3);

(iv)A letter of support by clinical psychologist Dr Annabel Avrahami dated 26 August 2022 (Exhibit 4);

(v)A CISP assessment report dated 30 August 2023 (Exhibit 5);

(vi)Psychiatric report by Dr Adam Deacon dated 27 October 2023 (Exhibit 6).

25Your background is that you were born and raised in Gippsland. Your parents separated when you were about 11, your alcoholic and abusive father leaving and from whom you have remained estranged. Your mother re-partnered with your stepfather and thereafter you enjoyed stable home life with your twin brother and two older sisters. Sadly, a younger sister died when she was only five years old.

26As a teenager you completed Years 11 and 12, were well liked, played sport including at State level competition. After school you moved to Queensland and worked in the mines, then in Darwin, and then travelling in south-east Asia before returning to Melbourne as COVID hit. Since then, you have worked for an engineering company providing services on contract.

27You have had a number of relationships, some of which involved drug use. They have not ended well. From early 2022 you admitted to having drunk too much and used cocaine and ecstasy regularly until you were taken into custody.

28You have a relevant criminal history. In 2017 you were convicted and fined for stalking. On 19 July 2018 you were, without conviction, placed on a bond for 12 months for throwing a missile to injure, cause danger or damage property. You were still subject to that bond when you committed the offence in this case in 2018.  In 2020 you were convicted and placed on a CCO for making a threat to kill, assault and using a carriage service to harass. In 2022 you were fined with conviction for persistently breaching an intervention order.

29You told Dr Deacon that you found your time in custody particularly onerous due to flashbacks and nightmares about being physically abused when you were young. You said you witnessed another prisoner being seriously assaulted and that you have fainted a number of times. You report being threatened by two other prisoners for money, prompting you to be moved into isolation where you fainted again.

30You report these fainting spells to be related to low blood pressure and that following a cardiological review arranged by the prison, you wear a heart monitor and are due for further review. I have not received any expert medical material to assist me to make any findings about the nature of any such condition or their consequences for your experience in custody and I make no findings about them.

31Otherwise, you report to have benefited from not drinking or using other drugs since being inside, other than prescribed anti-depressants.

32Dr Eisenmajer in his 2021 assessment (Exhibit 1) confirmed that you live with a mild Level 1 autism spectrum disorder and have an IQ in the average range. You are not totally egocentric as seen in classic cases of autism, he said, but have lower than proficient levels of awareness of others.

33Your work history and character references (Exhibits 2 and 3) demonstrate your proficiency in dealing with others though.  Your excellent rapport, excellent communication skills, organisation, punctuality, and ability to complete tasks well have been observed by others. You were said to be a proactive thinker and good at dealing with customers. You fitted in well at a social sporting club and were seen as always willing to help. Despite the mild symptoms observed by Dr Eisenmajer, I find that they do not rise to a level so as to enliven any of the considerations in the case of Verdins and I give those conditions very little weight.

34Dr Avrahami (Exhibit 4) stated that she had seen you in treatment over 10 sessions, presenting with symptoms of anxiety and potential depressive tendencies. You were seen to have made gains then through CBT, cognitive behavioural therapy, but I note the further offending relevantly alleged to have followed that assessment.

35In your CISP assessment in August 2023 (Exhibit 5), as you faced the revocation of your bail, you admitted very significant alcohol and drug abuse since the onset of the COVID pandemic and a new relationship. Prior to that you said you commenced anti-depressant treatment in 2020. The onset of these difficulties do not greatly help to explain your conduct back in 2018.

36Dr Deacon (Exhibit 6) expressed the view that you do not present with overt characteristic interpersonal features of an autism spectrum disorder but noted Dr Eisenmajer’s diagnosis. He said that this may contribute to navigating the complex dynamics in prison but due to your denials of any wrongdoing he stated that there is no identifiable nexus between your offending and any mental health problems you experience, which I accept.

Sentencing issues

37The maximum penalty for attempting to pervert the course of justice is 25 years' imprisonment.

38The gravity of your offending is demonstrated by the fact that you knew who you were impersonating when you sent the messages and made the calls and that she had previously been arrested in relation to problems with your brother. I find you also knew that your brother was making a complaint to police at the time you received the 'Go now' and the 'Call me again so it’s seen' messages.  So much was accepted by both the prosecutor and your counsel.

39You offended only two months after facing the Magistrates Court at the Latrobe Valley, albeit for a minor offence, and gave an undertaking to be of good behaviour. Whilst this does no credit to you at all, particularly as to your credibility or honesty about any other thing, it will not attract, of itself, much weight in sentencing you.

40Deterrence, both of you and others who might be tempted to engage in this kind of utterly dishonourable conduct, looms large. I aim to make the community's denunciation of what you did clear in imposing a penalty that is proportionate to your offending.

41Your relevant criminal history is of some note. In all the circumstances your history and the devious nature of this offending, I find your prospects for rehabilitation to be guarded.

42As to considerations of parity with your brother, I have had regard to the fact that his offending with you on the night of 12 September was for him a repeat of such conduct against his ex-partner and that his role in it was more serious, therefore, than yours. As a matter of justice, I will impose a lesser sentence on you for the offence relating to 12 September.

43You have been in custody since August 2023. I do not find that your time in custody has been more onerous due to COVID. I do find, however, that your guilty plea does have some added significance, coming as it did when the court was still, to a degree, dealing with a backlog of cases, which permitted the court to allocate resources to others.

44Your counsel, Mr Kounnas, submitted that in all the circumstances a community correction order would meet all the sentencing requirements in this case. The prosecutor submitted that in light of parity considerations, your relevant criminal history and the gravity of your offending, only a term of imprisonment would suffice.  

45Having considered all the circumstances and the submissions of your counsel, I have decided that a CCO would be inadequate in this case and that a term of imprisonment is required.

46On Charge 1, attempting to pervert the course of justice, I sentence you to be imprisoned for 15 months.

47That sentence being beyond 12 months, I have a discretion to, and I do exercise the discretion to fix a non-parole period of 9 months.

48I declare that you have served 173 days and direct that this be reckoned as a period already served under the sentence.

49In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea, I would have imposed a sentence of 20 months and fixed a non-parole period of 13 months.

Ancillary orders

50I am satisfied that the items seized during the police search listed in the application for forfeiture, ought to be forfeited.

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