Director of Public Prosecutions v Warren

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION
CR 14-01778
CR 15-00372

DIRECTOR OF PUBLIC PROSECUTIONS

MELANIE WARREN

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2015
DATE OF SENTENCE:	7 September 2015
CASE MAY BE CITED AS:	DPP v Warren
MEDIUM NEUTRAL CITATION:	[2015] VCC 2000

REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Offender Warren	Mr A. Brand
For the Offender Campbell	Mr L. Ritcher

1Melanie Warren, on 4 September 2015 you pleaded guilty to the following charges: On Indictment E10858995 a charge of aggravated burglary. This offence has a minimum penalty of 25 years' imprisonment. On Indictment No.E1406443 you pleaded guilty to attempting to pervert the course of justice. This offence also has a maximum penalty of 25 years' imprisonment. You also pleaded to a related summary offence of driving whilst disqualified. That has a maximum penalty of two years' imprisonment.

CIRCUMSTANCES OF OFFENDING (AGGRAVATED BURGLARY)
2You have pleaded guilty to this offence with your co-offender, Colin Campbell. This offending arises from drug dealing.
3On 8 March 2014, a drug transaction was believed by investigators to have occurred between Campbell and Baker. Baker agreed to make payment for the drugs later in the day. At 9.40 pm Baker met with Campbell at the Maiden Gully IGA supermarket. Campbell stated he wanted payment for the $340 or would come around to the Alana Court premises to collect it. Later in the evening Baker again arranged to meet Campbell at the Bendigo Bowl in Hargreaves Street. Baker again promised to make payment and left the meeting.
4At approximately 2.10am on 9 March 2014 a Mini Minor vehicle driven by you, in the company of Campbell, came into the driveway of the premises at 13 Alana Court, Marong. The premises at Alana Court were occupied by Sarah Smith, the de facto of Baker, and their four children aged between 14 and six years. Mr Baker was not present when you and Campbell arrived. The children were sleeping in their bedrooms within the house.
5Ms Smith was outside the premises when you and Campbell arrived. You were yelling things like "Where is the dog?”, “Where is the cunt?" Ms Smith advised you that Baker was not there. You walked into the premises through the front door, followed by Smith and then by Campbell. Campbell did not say a word. You were swearing and yelling and looking through the house looking for Baker.
6Smith told you that there were children in the house and that they would be scared if they were woken up. You replied, "I don't give a fuck, I'll kill you and the kids." You then said, "Get him back here", meaning Baker. Smith informed you that Baker did not have a phone and that she could message Shaun Campbell, whom Smith believed was with Baker. After text messages were sent back and forward there were a number of communications. You and Campbell remained at the premises until approximately 3.30am.
7During their attendance, Campbell made a number of phone calls. In a call to Daniel Brown Campbell said, "He's not here and she won't leave." He also said, "I won't let her hurt them." Campbell remained in the kitchen watching Smith when you went outside to the motor vehicle. He also assisted you in placing a number of items, including a birth certificate and cards, from Baker's wallet and medication into a bag. When Campbell was advised by Damien Brown that he had heard on his scanner that the police were on their way to the premises, both you and Campbell left, leaving the bag of collected items.
8One of the Baker children was woken up when you entered into her room and thereafter heard you yelling and threatening her mother. One of the other children described how he was woken up by a lady talking in a mean way to his mother, and later she was yelling so loud that he hid under the bed where he couldn't hear her that much.
9In your record of interview you denied leaving your premises or going anywhere near Colin Campbell during the previous night, or being owed money by Damien Baker, and otherwise you had nothing to say.
10
On my calculation, you have spent a total of

65 days in pre-sentence detention as a result of this offence.
11After a contested committal hearing in this case and after negotiations, you offered to plead guilty to the charge of aggravated burglary.

CIRCUMSTANCES OF OFFENDING (PERVERT THE COURSE OF JUSTICE & DRIVING WHIST DISQUALIFIED)
12I turn to the circumstances of your offence in respect of the attempting to pervert the course of justice and the related drive whilst disqualified.
13This offending is closely related to the aggravated burglary charge. You were in a relationship with your co-accused for this offence, Daniel Francis Brown, at the time of the aggravated burglary. The offence is serious because it strikes at the very core of our criminal justice system. In this case you sought to influence the evidence to be given by Brown at your committal hearing for the aggravated burglary charge.
14In early 2014 you and Brown had entered into a relationship and you lived on Holdsworth Road, North Bendigo.

On 9 March 2014, as previously been outlined, you were involved in aggravated burglary in Marong. You were charged. Daniel Brown provided two statements to police investigators; one on 9 March 2014, the day of the offence, denying knowledge of the aggravated burglary, and the second on

9 April 2014, admitting knowledge of Campbell and yourself attending at the Marong premises and sending messages to Campbell warning him of the likely attendance of police.
On 20 June 2014 Brown was imprisoned for drug trafficking offences. He remained in custody undergoing sentence for the remainder of time. You were granted bail on 11 March 2014 and you remained on bail until it was revoked in December 2014.
The committal hearing of the aggravated burglary offending by you and Campbell, was listed for 6 October 2014.
Between 7 August 2014 and 10 October 2014 you had contact with Brown by telephone. It was at the Marngoneet Correctional Centre. In particular, on

5 October 2014 Brown again rang you and you said, "Just be really, really strong tomorrow please", to which Brown responded, "Yeah, all right."
At the conclusion of the first day of the committal, 6 October, Brown rang you. After disclosing he was back in Port Phillip Prison Brown was asked by you, "Do you remember much?" Brown responded, "Not really." You then asked, "Yes or no, or not really? Yes or no?" Brown responded, "Try me best." Warren said, "No. Like it is a no, yeah?" Brown: "Hey." Warren: "It's a no, isn't it?" Brown: "I don't remember fuck all."
You then informed Brown that Sean Campbell, a witness in the committal hearing, said “he didn’t remember anything, but they sort of caught him out, like, if you don't remember anything, you actually don't remember anything” “You know what I mean?" Brown says, "All right" and the conversation goes in that manner.
During the course of the giving of sworn evidence at your committal on

7 October 2014, Brown was asked by Magistrate Tregent, "Does Ms Warren come and visit you in gaol?" Brown responded, "No, no, not yet." Marngoneet Correctional Centre visitor's records disclose that Brown had been visited by you when you were using an alias of Margarita Caride on Sunday

28 September 2014.
A short time after this Brown was asked questions on oath concerning his statement made on 9 April 2014. After admitting that it was a second statement made by him to police investigators, he was asked by the prosecutor, "Are there any changes you wish to make to this statement?" to which Brown responded, "Yeah, it was incorrect." When taken to the specifics of the assertion in his statement being true and correct, Brown stated that “he couldn’t remember”. Brown repeated this response to all further questions put to him.
Some time later in the committal proceeding, Brown was asked by the prosecutor, "Have you had any phone contact with Melanie Warren since you have been in custody?" Brown responded, "No." On 10 October 2014, Brown called you from Marngoneet Correction Centre. During your discussion with Brown he confirmed that he had booked a visit for you at 10.30 am on the following Sunday.
At approximately 12.30 pm on Sunday 7 December 2014, you were arrested by police outside the Marngoneet Correctional Centre as you were attempting to enter the prison. When asked for your identification, you handed over a licence for Margarita Caride. A search of your motor vehicle revealed three mobile phones, two of which were in the name of Margarita Caride and a prisoner's visitor receipt for Daniel Brown in the name of Margarita Caride. Margarita Caride is a false name used by you.
You have exercised your right to make a "no comment" record of interview in this case. You indicated your willingness to plead guilty to this charge in April 2015. Your co-accused, Brown, was sentenced for this offence on 15 May 2015 by Judge Maidment. Mr Brown was undergoing a sentence of some six years with a non-parole period of three years and ten months at the time. He was sentenced to nine months' imprisonment with three months cumulative to be served on his other ongoing sentences.

YOUR PERSONAL CIRCUMSTANCES

You are now 32 years old. At the time of the aggravated burglary offence you had just turned 31. On 4 February 2015 you were sentenced at the Heidelberg Magistrates' Court to 15 months' imprisonment with a non-parole period of seven months imprisonment. You were still in custody for these drug-related offences at the time of your plea for these offences here before the court.
Prior to these offences you had prior offending for driving offences. There are no outstanding charges to be finalised.
You have had a difficult early life with a physically abusive father. He was obviously a dangerous man. When you were 13 years old your mother escaped from your father with you and your brother. You went to a safety house for refuge. Your father pursued and harassed your mother for a number of years after that. As a result of this domestic violence your education was interrupted. You were expelled from White Hills Secondary College. You failed to complete a TAFE course in fashion and hospitality. However, you completed your education at Year 11 at Bendigo Secondary College.
After Year 11, you joined the Australian Army in 2001. You completed basic training and then transport training, heavy vehicle maintenance and fitness training. You were a successful soldier. You served in East Timor as a peace keeper. In that role you were exposed to combat. In order to protect your load of ammunition people died. After East Timor you were posted to the Australian Federation Guard. This is mainly a ceremonial posting.
In 2004, you were awarded the Soldiers Medallion and the Soldier of the Year award. You were accepted to train at the Royal Military College in Canberra. In the references, part of Exhibit W4, you are photographed with the current Governor General. You were a successful soldier. You had a proud and successful time in the army. In 2006 you were honourably discharged from the army shortly before your father's death.
Toward the end of your career in the army, your life took a turn for the worst when you commenced using cocaine, ecstasy and MDMA and cannabis. On weekends you started to work in brothels for the “adrenalin rush” and the money. I refer there to Patrick Newton's report which is Exhibit W2.
After the army, you worked full time in prostitution and commenced your own escort agency. By 2010 you were in a methylamphetamine addiction and a relationship with a fellow abusive abuser of drugs. You trained in real estate and worked in that field as well as a sales representative, however the level of your drug taking effectively ceased your working life at that time.
In 2013 you had a serious attempt at drug rehabilitation. You attended the Innisfree Rehabilitation Centre. After discharge, you relapsed to drug use and the offending that brings you here to court. You have, whilst in custody, attended a 35 hour drug rehabilitation program.
Mr Newton, psychologist, has diagnosed you as suffering from post-traumatic stress disorder. He says your condition is chronic, it arises from your service in East Timor. He describes your drug use as expanding across the period of 2004-2014 with compulsive use and symptoms of physical dependence.

Mr Newton diagnoses you as suffering from severe stimulant use disorder, which is in early remission in a controlled environment, that is whilst you are in custody.
Mr Newton assessed you as being above normal intelligence with good potential with further training and education.
Your mother has repartnered with John Leahy when you were about 13 years old, as I understand it. You enjoy the support of your mother and Mr Leahy.
Whilst you have been in custody since February 2015, you have undertaken a horticultural course and work in that area at the Dame Phyllis Frost Centre. You are trusted to drive a tractor in that facility. You have done a drug treatment program and you are currently drug-free.

IMPACT ON YOUR VICTIMS

Your actions on 9 March 2014 have frightened and terrified Ms Smith and her children. These children were the same age as yourself when you and your mother and your brother were threatened, abused and terrified by your own father. In the cold light of day you must know what effect you had on your victims.
Further, in your peace keeping work in East Timor, you would have witnessed the effect of home invasion and destruction on families and you have returned home here to Australia to inflict the same pain on defenceless people.

SENTENCING CONSIDERATIONS

I now turn to sentencing considerations. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offences, your culpability for them and your personal circumstances.
I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you as an offender are rehabilitated and reintegrated into society.
I have regard to the current sentencing practices and the statistics in relation to these set of offences. I have considered those statistics and current practices, mindful that each case must be considered in the light of its own particular circumstances and the role that the offender plays in those offences.
In your case, I have to take into account the totality of your offending behaviour. I also have to take into account the totality of this sentence I impose on you so as to not impose a crushing or an unjust sentence. The principle of totality also requires me to take into account that you have been in custody on other matters since February 2015.
Another consideration is parity between yourself and your two co-offenders. In the case of aggravated burglary your role in that offence is much greater than that of your co-offender, Campbell. You were the offender issuing the threats. You were the offender who searched rooms in the house. Your role in the aggravated burglary was far more significant than Campbell's.
In the case of the charge of attempt to pervert the course of justice, again your role is more significant than your co-accused, Brown. It was you who potentially would have benefitted by Brown changing his evidence in relation to the aggravated burglary charge. It was you who was orchestrating Brown to join in with this scheme to pervert the course of justice. Whilst Brown was sentenced to nine months' imprisonment and ordered to serve three months cumulatively it is a threshold for the parity of sentence your differing roles and culpability necessitates your effective sentence to be more severe for that offence.
The aggravating features of your offending in the aggravated burglary are;
(a) it was at 2 am
(b) it was a private home where the family was asleep in the house
(c) you were there yelling and threatening in an irrational manner
(d) you were obviously in charge of the attendance or raid.
The mitigating factors are
(a) you did not act on your threats
(b) there was no break and enter to the house, you simply walked in
(c) you left when warned the police were coming.
I have previously dealt with the seriousness of the pervert the course of justice charge, however I must say this. The administration of justice depends on the system operating so that those who commit crimes are pursued, brought to court and punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned. In the DPP v Aidan and Kirsch Eames J said this:
"Instances of the offence of perverting the course of justice do not frequently come before the higher courts. The relevant infrequency of such cases and the fact that the offence may embrace a wide spectrum of criminal conduct means it is difficult for sentencing judges to assess just where the sentencing range for the offence of any case ought to be regarded as falling."
In the end your efforts were thwarted by the authorities and this offending has not resulted in any benefit to you, even in a temporary sense. It has only served to aggravate the totality of your offending and the consequential sentence.
The related summary offence of drive whilst disqualified is part and parcel of your attempts to get Brown to change his evidence in the sense that you wanted a face-to-face meeting with him.
You have pleaded guilty to all of the charges. Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea of guilty vindicates public confidence in the legal process set up to protect the community. You have by your plea relieved your victims from giving evidence against you. It facilitates some closure for them and your plea of guilty also indicates and demonstrates some remorse, which I accept you have. Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal conduct. Your plea also recognises you are willing to facilitate the course of justice in the community. As I said, I accept your plea as an indicator of your remorse and Mr Newton accepts that you are remorseful.

WOULD YOU STAND PLEASE

On Indictment E10858995, you are convicted of aggravated burglary and sentenced to 18 months' imprisonment.
You are also placed on a three year community corrections order commencing immediately on release from prison on the total effective sentence of this indictment and the other indictment I am about to announce.
The conditions of the CCO are as follows: That you be under supervision, that you have drug and alcohol treatment and testing, that you have psychiatric assessment and treatment and that you have judicial monitoring 90 days after your release from custody.
I declare that but for your plea of guilty in respect to the aggravated burglary, I would have sentenced you to three and a half years' imprisonment with a two and a half year non-parole period.

The total effective sentence of all of this is 23 months' imprisonment and I will explain it to you in a minute.
On Indictment E1406443, you are convicted of attempting to pervert the course of justice and sentenced to nine months' imprisonment. I order that five months of this sentence be served cumulatively on the sentence of Indictment No.E10858995.
On the summary charge of drive whilst disqualified, you are convicted and sentenced to one month imprisonment, such sentence to be served concurrently with all other State sentences.
Under the attempting to pervert the course of justice charge, but for your plea of guilty under s.6AAA, I declare I would have sentenced you to 12 months' imprisonment.
As I said before, your total effective sentence is 23 months' imprisonment. You have a three year CCO upon release.
I declare that you have already served 65 days of this combined sentence to be deducted administratively.
Further, signed disposal orders were handed up to me on Friday and a forfeiture order.
Is there anything further? Mr Brand, you are moving back. Thank you.
MR BRAND: Your Honour, there was a reference to having some flexibility in terms of residential rehabilitation.
HIS HONOUR: Yes.
MR BRAND: Your Honour, in a sense that would be a useful fall-back position for the Office of Corrections in the event that there was any issue. I say that for this reason. This morning in one of the papers it was reported, and I will not be very long.
HIS HONOUR: In one of the?
MR BRAND: One of the newspapers.
HIS HONOUR: I see. Yes?
MR BRAND: It was reported that in Victoria there are 19 beds in private clinics for ice users.
HIS HONOUR: Yes.
MR BRAND: That the beds range from $7,00-$28,392 a month.
HIS HONOUR: Yes.
MR BRAND: That there is a four to six month wait for public funded beds in Victoria and, for example in Geelong there was 100 people on the waiting list and 12 beds available. As I understand it, Your Honour, the Office of Corrections or at the Department of Justice actually have beds with were assigned for their clients. If there was such an order, if there was any difficulties or if, for example Ms Warren said, "Look, I really need more intensive assistance," she would then have access to that type of facility without the delays that would be ordinarily within the system.
HIS HONOUR: You are asking me to add a condition?
MR BRAND: Yes, Your Honour.
HIS HONOUR: Yes.
MR BRAND: It is a condition which would not take any effect unless there was any particular issue with the course that Ms Warren was on.
HIS HONOUR: Yes.
MR BRAND: But if there was a need for it, it could be imposed before there is an essential breach and it could be imposed either by the Office of Corrections or by a disclosure by Ms Warren that she needed further intervention. It is only for the first three months of the order, Your Honour, as I read the report that they are seeking that.
HIS HONOUR: Yes.
MR BRAND: It seems to me that when one considers the ‑ ‑ ‑
HIS HONOUR: That will cover the same 90 days of my judicial monitoring?
MR BRAND: Indeed. That is not to say that she would be put into a rehabilitation facility.
HIS HONOUR: No.
MR BRAND: We are hoping she will not.
HIS HONOUR: No.
MR BRAND: But it would allow for a degree of intervention in a positive fashion, Your Honour.
HIS HONOUR: Yes, all right.
MR BRAND: It is only for three months and it seems to me that those first three months are always the critical time.
HIS HONOUR: They are.
MR BRAND: If things go well there will be no issue.
HIS HONOUR: Yes.
MR BRAND: It seems to me it would be better to have that handbrake, if you like, rather than coming back in 90 days before Your Honour saying, "We tried to get into a rehabilitation facility and we can't get in."
HIS HONOUR: Right. All right, I will make that.
I will make that further order that the prisoner, Ms Warren, be recommended for residential rehabilitation upon the release from prison.
MR BRAND: If Your Honour pleases.
MR CORDY: If Your Honour pleases.
HIS HONOUR: I will have to have those orders made and then be signed.
MR BRAND: The 464 order is not opposed, Your Honour.
HIS HONOUR: Thank you.
MR CORDY: There is not one sought.
MR BRAND: There is not either.
HIS HONOUR: No, no, they, the authorities, already have Ms Warren's details.
MR BRAND: Yes.
HIS HONOUR: Ms Warren, whilst those documents are being printed, I have sentenced you to 23 months, as you know.
OFFENDER: Yes.
HIS HONOUR: Your life is right on the knife edge now. You are smart, you are really clever. You can either choose to go back to the army days type of thing, successful life, or the other life which is just going to be hell for you.
OFFENDER: Yes, I know that.
HIS HONOUR: Yes. Just stay at it. Thanks.
OFFENDER: Thank you.
HIS HONOUR: Thanks. I am sorry about this everyone. The technology here has frozen. It is not an uncommon event in Bendigo Court unfortunately so we have just got to wait for a short time and hopefully we can get the paperwork generated. In the interim unfortunately those prisoners will have to remain in the back of the court before I can let them go.
I will just stand down.
(At a later stage.)
(Community corrections order signed and acknowledged.)
(Disposal orders signed and acknowledged.)
(Forfeiture order signed and acknowledged.)
Mr Brand and Mr Ritcher, I would like to thank you for your assistance in these matters and preparation of the submissions and the paperwork to go with it.
MR RITCHER: Thank you, Your Honour.
HIS HONOUR: Thank you both. You are free to go.
Ms Warren, we are having some trouble getting the precise orders for your custody to be printed here. Unfortunately you will have to wait out the back here until such time as those papers can be prepared, otherwise you are off to Dame Phyllis Frost. If you could remove the prisoner please. The paperwork will be coming out shortly.
MR CORDY: As Your Honour pleases.
MR BRAND: As Your Honour pleases.
HIS HONOUR: You are free to step out of there, Mr Campbell. Thanks.
MR RITCHER: If I could be excused, Your Honour.
HIS HONOUR: Yes, certainly, thanks.

‑ ‑ ‑

[2015] VCC 2000

7 September 2015