Director of Public Prosecutions v Warren

[2019] VCC 310

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00702

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEBRA WARREN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2019
DATE OF SENTENCE:	15 March 2019
CASE MAY BE CITED AS:	DPP v WARREN
MEDIUM NEUTRAL CITATION:	[2019] VCC 310

REASONS FOR SENTENCE
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Subject: Attempt to pervert the course of justice
Sentence: Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough
For the Accused	Mr S. Kennedy (For Plea) Mr A. Paul (For Sentence)l

HIS HONOUR:

1After a trial lasting seven to eight days, you have been convicted of one charge of attempting to pervert the course of justice for which offence the maximum penalty is imprisonment for 25 years.

2You were charged jointly with your partner, Wayne Smith.  He was also charged with one charge of rape.  The two offences were related and heard together.  Wayne Smith was convicted of both charges and awaits plea and sentence.

3I need to put your offending into a chronological context.  On 7 June 2017, Wayne Smith was charged with rape of a young woman then aged 15.  The offence occurred on or about 6 May 2017.

4Your offending with Smith occurred between the time he was charged with rape and 10 July 2017.  The prosecution case which must be taken to have been accepted by the jury, was that you and Smith approached two young women in Ballarat and paid each of them $50.00 to assault the complainant in the rape case, in the vicinity of the City Mall in Ballarat.  According to the evidence you were in a car with Smith and your daughter and other young people when the two prospective assailants were approached and retained to undertake the assault.  You asked them to obtain video footage of the assault to prove that it had taken place.  When you were told that the assault had taken place, you returned in your car to the area of the Mall and paid each of the supposed assailants $50.00, in the belief that they had carried out your and your partner’s instructions.  The purpose of doing this was to intimidate the complainant and coerce her to withdraw her complaint of rape against your partner.

5As it transpired, your daughter realised after the two girls had been paid $50.00 each, that the assault had been faked.  The assailants in fact knew the complainant.  They pretended to assault her to get paid and this is what happened.  The whole incident was referred to throughout the trial as the "Fake bashing".

6The complainant was not deterred and gave evidence in the trial against your partner, who as I say, has been convicted of her rape.

7As I indicated at the initial commencement of your plea soon after the completion of the trial, your offending is a very serious example of the offence of attempting to pervert the course of justice.  It was an attempt to influence a complainant in a rape case to withdraw her complaint.  That said, it was an amateurish and unsophisticated attempt.  But you played a role in the recruitment of the assailants, and you paid them for their work.

8You pleaded not guilty to the charge and that is your right.  You cannot be punished for having pleaded not guilty.  However, you cannot expect to receive a reduced sentence which would follow, had you in fact pleaded guilty to the charge.  You have shown no remorse for your actions.  When interviewed by the police, you denied the allegations and you were dismissive of the allegations put to you.  Your record of interview was tendered as part of the prosecution case.  You did not give evidence as is your right.

9Mr Kennedy who appeared as your counsel on the trial and on the plea submitted that I should not send you to jail for this offending.  He submitted that the purposes of sentencing in this case can be achieved by the making of a Community Corrections Order with appropriate conditions including a punitive condition, requiring you to undertake unpaid community work.

10The prosecution correctly submits that this kind of offending strikes at the heart of the administration of justice, and any sentence imposed must have full and proper regard to application of the principle of general deterrence, so that those who would seek to offend as you have, will be dissuaded from doing so.  The sentence must also serve to appropriately denounce your offending.  The prosecution submits that any sentence imposed must include a term of immediate imprisonment.  The prosecution provided me with information from the Judicial College website, including case summaries for this kind of offence and cases showing a sentencing range.  That information is of only limited assistance in sentencing for this offence, having regard to the infinite number of ways the offence can be committed.

11In normal circumstances, I would accept the prosecution's submissions and send you to gaol.  You attempted to intimidate a witness.  However, I am persuaded not to take that course because of the amateurish nature of your offence, and because I accept the evidence submitted to the court on your behalf that you likely acted under duress from your co-accused, a man with a reasonably lengthy criminal history, including for offences of violence.  A further factor that has influenced my decision is the fact that apart from one minor matter involving possession of cannabis 25 years ago, you appear before the court aged 56, with no prior convictions and you have otherwise led an unblemished life.

12I received into evidence a psychological report from Gina Cidoni, who interviewed you for that purpose on 29 November 2018.  That report sets out much of your background.  You and your co-accused have been in a relationship for some 20 years and you have two children from it now aged
17 and 14.

13Your relationship with Wayne Smith has been marked by violence.  In August of last year, you engaged with WRISC due to experiencing family violence which is recorded to have included assault, verbal and emotional abuse, control, and threats to harm and kill you.  At that time, Smith was on remand awaiting trial for rape, but he was influencing you from gaol by his conduct.  You were referred to family violence counselling and for emotional support.

14Previously in February 2013 and in July 2014, intervention orders had been made naming you and your children as the protected persons.  The orders were made against Wayne Smith.  You told Ms Cidoni that you also had to endure threats from the sister of Wayne Smith in the lead-up to the trial.  I am satisfied that at the time you offended, Wayne Smith was the controlling influence and you acted as you did out of fear.  You are no longer in a relationship with Smith.  I was told you have met someone else and you desire to pursue a happy relationship with that other person away from Ballarat.

15You were born in England and migrated to Australia with your parents as a child.  You left home at 19 and you were married to your first husband aged
21 and lived locally.  You have a son aged 41 from that marriage.  After your first marriage failed you returned to live with your parents.  They are both now deceased.

16You formed a further relationship with a man Luke, with whom you had another son.  Luke died last year.

17You met Wayne Smith in 1998.  You did not know that this was shortly after he had been released from prison, having served a sentence for armed robbery.  You moved to Ararat between 2005-6, where you had a business as a tattooist.  Wayne Smith abused both alcohol and drugs and this made your life with him very difficult.  Your relationship with Wayne Smith ended upon his arrest and remand on the rape charge on 14 August 2017.

18You have limited education but a reasonably good employment record.  Psychological testing shows you have an IQ of 89 and are of below average intelligence where 77% of the population of your age would test higher. 
Ms Cidoni thought you to have symptoms of situational stress, poor judgment, disorganisation with mildly disturbed processes.  You suffer from depression and anxiety with symptoms of Post-traumatic stress disorder.  She also thought imprisonment for you would only serve to worsen your mental health problems, and you would experience difficulty in a prison environment.  I accept that evidence.

19In my judgement the purposes of sentencing in your case can be met by the making of a Community Corrections Order with appropriate conditions.  The sentencing law in this State provides that I should only sentence you to imprisonment when the purposes of sentencing cannot be achieved by the making of a Community Corrections Order.  I have had you assessed as to suitability for the making of such an order.  You have been assessed as suitable and as a medium-risk of reoffending.

20On the charge of attempting to pervert the course of justice, I make a Community Corrections Order with conviction for a period of two (2) years commencing this day.  There will be terms and conditions including:

·    That you complete 150 hours of unpaid community work;

·    Supervision from the Department of Corrections;

·    Undertake programs for treatment & rehabilitation for mental health and programs to prevent re-offending.

21Are you willing to enter into a community corrections order with those conditions, Ms Warren?

22ACCUSED:  Yes.

23HIS HONOUR:  Just come out of the Dock area if you would and take a seat behind your counsel.  Now, Mr Paull, the prosecution seeks the making of a s.464ZF order.

24MR PAULL:  Yes.

25HIS HONOUR:  Is that opposed?

26MR PAULL:  No, it is not.  I have taken instructions this morning.  It is by consent.

27HIS HONOUR:  Very well.  Now, Ms Warren, there is a number of things you need to understand very clearly, and that is that having made the Community Corrections Order, you have to comply with it.  Everything.  You have to do the unpaid community work.  I understand that there is a problem with some carpal tunnel problems.  But as I understand it, you are having treatment for that, or you may be having that released?

28ACCUSED:  Yeah, I'll be right, I've got wristbands that I can wear and yeah.

29HIS HONOUR:  Yes, very well, and you will have to attend all of the appointments with community corrections.  If you do not, you will be brought back before me and may be re-sentenced.  Do you understand?

30ACCUSED:  Yes, I understand.

31HIS HONOUR:  Now, the other thing is this; that the prosecution seeks, and I will make what is called a forensic sample order, which means you will have to attend before the police at Ballarat within the next two months, to provide them with a forensic sample, which is just the taking of a swab from your mouth.  Do you understand?

32ACCUSED:  Yes, that's fine.

33HIS HONOUR:  And if you do not, they can use reasonable force to take that.  Very well.  Yes, well upon the rising of the court, you are free to leave.

34ACCUSED:  Thank you, Your Honour.

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