Director of Public Prosecutions v Theobald

[2024] VCC 1688

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-24-00719

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN THEOBALD

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2024
DATE OF SENTENCE:	22 October 2024
CASE MAY BE CITED AS:	DPP v Theobald
MEDIUM NEUTRAL CITATION:	[2024] VCC 1688

REASONS FOR SENTENCE

---

Subject:Plea - sentencing

Catchwords:          Attempt to pervert the course of justice

Legislation Cited: 

Cases Cited:Bugmy v The Queen [2013] HCA 37

Sentence:15 months' imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Sheppard	Office of Public Prosecution
For the Accused.	Ms A. Patterson	Gallant Law

HIS HONOUR:

1Nathan Russell Theobald, you have pleaded guilty to attempting to pervert the course of justice.  The maximum penalty for that offence is imprisonment for
25 years. 

2You have admitted prior convictions, as set out in a criminal record dated
9 October 2024, which go back to 2001 and include some offences involving dishonesty and violence.  But in the main your criminal history is one of relatively petty offending and there have been periods during which you have worked, showing yourself capable of holding down a job.  Those periods seem to coincide with times when you have a stable environment.

3The prosecution relied upon an outline which has been read to the court this morning.  I do not propose to repeat it.  Suffice for me to say that your offending arises out of a burglary that was committed by members of a family to which your co-accused belonged.  It resulted in you attending the home that was the subject of the offending by those family members of your co-accused with a view to persuading one or more of the occupants not to attend court to support charges against those concerned with the home invasion and burglary.

4You offered a bribe for them not to attend court.  That was not accepted.  Not long afterwards you were arrested by police.  It is to your credit that you admitted the offending conduct. 

5Your counsel provided me with a detailed written outline of submissions on your behalf dated 4 October 2024, in which she draws on the content of a report from psychologist Simon Candlish dated 30 September 2024. 

6That report sets out a lot about your background.  It is clear that you have a past which enlivens principles known as the Bugmy principles, arising from a decision of the High Court in the case of Bugmy v The Queen [2013] HCA 37, which have been applied in a number of different courts, including the Supreme Court of Victoria. Those principles recognise that a person with the kind of background that you have: the very early introduction to drug abuse, being subjected to abuses of various kinds and an unstable upbringing, is likely to commit offences and therefore is deserving of some reduction in sentence as a result of the effect upon them of childhood deprivation and abuse.

7Mr Candlish diagnosed a moderately severe depression, a body dysmorphic disorder and a moderate personality disorder with prominent features of negativity, dissociality, detachment and disinhibition.  It is not submitted that those mental impairments themselves serve separately to reduce your moral culpability, but they will make doing your time harder and your counsel submitted that I should factor them in in reduction of sentence.  I intend to do so.

8The offence of attempting to pervert the course of justice, as your counsel accepts, is a serious offence reflected in the maximum penalty of 25 years' imprisonment.  However, the prosecution does not suggest that this comes towards the higher end of the scale of seriousness.  They describe it as an offence of moderate seriousness.  Your counsel makes a similar submission.  Nevertheless, as your counsel readily accepts, offending of this type strikes at the heart of the justice system, and general deterrence and denunciation are prime sentencing considerations. 

9Your counsel accepts that specific deterrence is a relevant factor given your criminal history but points out that you have served many terms of imprisonment which have reduced the deterrent effect of imprisonment.  That tends to promote institutionalisation, which is not desirable, particularly in a person who is now in his 40s and should be looking to find a more stable and offence-free way of life.

10We have had a sentence indication hearing and these matters have been canvassed and considered.  So, it will not come as a surprise to you that I accept the prosecution's submission and your counsel does not suggest otherwise that a term of imprisonment is the only appropriate sentence that I can impose.  Doing the best I could to apply the various factors in your favour in mitigation of sentence, I indicated that a period of 15 months’ imprisonment not involving a non-parole period - particularly given that there was every chance you would not get parole at the end of the non-parole period - would be an appropriate way of dealing with the matter.

11For the offence of attempt to pervert the course of justice, you are convicted and sentenced to imprisonment for a period of 15 months. 

12I declare 257 days pre-sentence detention as time to be reckoned as served on the sentence that you would otherwise have to serve.

13But for your plea of guilty, I would have sentenced you to imprisonment for 22 months.  Are there any other orders I need make, counsel?

14MR SHEPPARD:  No, Your Honour.

15HIS HONOUR:  Thank you.

- - -