Director of Public Prosecutions v Yeend
[2017] VCC 765
•5 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 17-00991
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL CRAIG YEEND |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 29 May 2017 | |
DATE OF SENTENCE: | 5 June 2017 | |
CASE MAY BE CITED AS: | DPP v Yeend | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 765 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited:Andrews (1972) 57 CR APP R 254; Tognolini v R (2011) 32 VR 104; R v Semaan & Beljulji [2016] VSC 667; DPP v Byrne [2015] VSCA 294; R v Buscema [2011] VSC 2006
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Bruhn | Office of Public Prosecutions |
| For the Accused | Mr J Gullaci | Emma Turnbull Lawyers |
HER HONOUR:
1 Daniel Craig Yeend, you have pleaded guilty to one charge of attempting to pervert the course of justice. The maximum penalty applicable to that offence is 25 years’ imprisonment.
2 This crime arises out of events which took place on 12 October 2015. It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is for present purposes, enough to simply say your offending is most serious.
3 I turn to a brief summary of your offending. At the time of it, you were 26 and you are 28 years of age at sentence.
4 On 17 August 2015 you were charged with contravening a family violence order by attending an address on 13 December 2014, being the residence of JA, a "protected person".
5 On 12 October 2015, at a summary case conference you said you intended to defend that charge and offered the following information as the basis for your defence:
· You denied being present at the protected person’s address. You said on the evening of 12 December 2014, you had dinner with a female "Brandi".
· You said at about 8.00am on 13 December 2014, you were involved in a vehicle collision in the vicinity of the Warrigal Road exit on the Monash Freeway. At that time you said you were driving a black utility, registration JANDL.
· You said the driver of the other vehicle involved in the collision was Joseph Gatt, who was driving a truck, registration ZST 310.
· You said a tow truck from BTS Towing attended as a result of that collision.
6 In support of that defence, you showed the prosecutor a tow invoice number 336951 from BTS Towing. You also showed the prosecutor damage to your car, albeit ten months later. The prosecutor at the time did not take a copy of that invoice.
7 On 14 October, two days later, the prosecutor emailed the informant in relation to the charge and requested she check your version of events, including checking with BTS Towing whether the tow invoice number 336951 was genuine.
8 In or about October 2015, the informant contacted BTS Towing and spoke to the director, Peter Cooen, about that invoice. Cooen checked his records and found he did not have a record of that invoice number, and was also missing a book of invoices starting with that number. Cooen had no record of you, Gatt or registration numbers JANDL or ZST 310. He also said his company did not service the Monash Freeway area.
9 On 18 December 2015 a search warrant was executed for vehicle registration JANDL, located at Macedon Ranges Towing in Romsey. Items seized from the vehicle were the tow invoice number 366951 and two printed pages with the summary of the particulars of your alibi.
10 Also in December 2015 the informant sent a copy of tow invoice number 366951 to Cooen, who recognised the writing as that of one of his employees, Harry Tsiknas. Cooen also said the registration of the tow truck on the invoice was unknown to him.
11 On 11 January 2016, Tsiknas provided a statement to police stating that on or about 13 December 2014, a female named Brandi came to his door and asked him to write out a tow invoice for her friend, Daniel, which he did. Tsiknas said he did not know what the invoice was for, but said the registration of the tow vehicle on the invoice was fictional, and to the best of his knowledge the vehicle was not actually towed.
12 Your behaviour was obviously quite unacceptable and grossly dishonest.
13 On 5 October 2016 the police contacted your solicitors requiring consent to interview you. Your solicitors informed the police you declined to be interviewed and of course, that was your right.
14 There have been many authorities that have discussed this type of offending. It is conduct which undermines and threatens the administration of justice and is viewed very seriously by the courts. In determining the appropriate disposition, all of the circumstances of a particular case need to be taken into account, and I am mindful the gravity of the offending can result in sentences that range from minor to punishment of much greater severity.
15 The courts have stated that the principal purposes of sentence for attempting to pervert the course of justice should reflect public disapproval and the need for specific and general deterrence. Good character may not be significant in relation to such an offence compared with other offences (see the decision of Andrews[1]).
[1] (1972) 57 Cr App R 254
16 You have admitted a number of prior court appearances. You have had extensive involvement with the criminal justice system, with your first court appearance in 2012.
17 On 11 May 2012 you appeared at the Sunshine Magistrates’ Court on charges of driving while disqualified, use amphetamine, hinder police, traffic methylamphetamine and possess methylamphetamine, and were placed on a community correction order for twelve months.
18
You were dealt with for breach of that order on 17 December 2012. The breach was proven, and another twelve-month community correction order was imposed. That was again subsequently breached and dealt with on
23 February 2015. Again, the breach was proven and a twelve-month community correction order imposed to commence on 22 April 2015.
19 You also appeared on 5 December 2014 on multiple charges of contravening a family violence intervention order, assault, and contravening a condition of bail. You were placed on another twelve-month community correction order and subsequently also dealt with for breach of that on 23 February 2015, for which you received one month’s imprisonment. Your most recent prior court appearance was on 23 February 2015.
20 You also appeared at court on 22 February 2016 on a number of drug offences for which you were convicted and fined an aggregate of $1000.
21 Subsequent to this offending before me, you appeared at Kyneton Magistrates’ Court on 24 October 2016 where again breaches of two community correction orders were proven. Both were cancelled and no further orders made.
22
You were also sentenced on a number of other offences, dates of those offences set out in the amended prosecution opening (see Exhibit A,
paragraph 15), including the contravention of family violence intervention order on 13 December 2014 which is directly relevant to the matter before me.
23 On 24 October 2016 you received a total effective sentence of one year and eight months' imprisonment with a non-parole period of 12 months (with 39 days declared as pre-sentence detention). You are undergoing that sentence at time of sentence for the offence before me.
24 You have been given a number of opportunities on community correction orders but have not taken those on board, having breached on a number of occasions.
25 You were charged with the offence of attempting to pervert the course of justice on 16 January 2017. There was a filing hearing at the Melbourne Magistrates’ Court on 27 March 2017, and at a committal mention on 22 May 2017, this matter resolved into a plea of guilty to the charge before me.
26 You have pleaded guilty to this charge, and you are entitled to have that fact taken into account in your favour, and I do so. Your plea of guilty has meant the court has been spared the time and cost of running a trial and witnesses have not been required to give evidence upon your trial.
27 Further, I take into account in your favour you intimated early your intention to plead guilty to this charge. I am prepared to accept your plea of guilty indicates some remorse for your offending.
28 I discussed with your counsel, Mr Gullaci, the circumstances of your offending. He agreed your offending before the court was serious and that ultimately the imposition of an immediate term of imprisonment was the only appropriate disposition. That was an appropriate concession.
29 Mr Gullaci conceded your offending also breached a community correction order. I stress you are not being sentenced for breach of that order, rather your offending occurred while subject to that order.
30 Mr Gullaci submitted when assessing the seriousness of this offending, I could take into account that you involved others in this, specifically Brandi and Tsiknas.
31 Mr Gullaci further conceded that consistent with the statement of Tsiknas, the false invoice had been obtained by Brandi and given to you at around the time of your offending in December 2014, and was obtained relevant to likely charges of breaching an intervention order.
32 I was told that prior to your attendance at the ‘protected person’s’ residence on 13 December 2014, you had been in a collision in October 2014 involving Gatt, a person unknown to you and not related to this offending in December 2014.
33 Mr Gullaci conceded by the time of the summary case conference you had kept this false invoice ready for use, if required, and as I have said, ultimately used by you at the conference on 12 October 2015. You had been charged with contravening the family intervention order on 17 August 2015.
34 Mr Gullaci conceded you obtained this invoice from Brandi in advance, in the likelihood you would be charged. You had, therefore, taken a ‘pre-emptive’ step towards providing a false alibi for that offending.
35 The search of your car at Macedon Ranges Towing on 18 December 2015 was, I was told, as a result of your car at that stage having been impounded for reasons unknown.
36 Mr Gullaci conceded there was a level of premeditation and planning prior to you being charged in August and then, when charged, your plan came into effect. He conceded there were opportunities for you ‘along the way’ to desist from offending, however, you chose to proceed. He submitted your offending was not sophisticated, and that ultimately it was not difficult for police to disprove your alibi. That may be so but there was, in my opinion, a level of sophistication in the entirety of the process. You at least hoped this invoice would result in police not proceeding with the contravention charge.
37 Mr Gullaci also prepared a helpful written outline of his plea submissions. The current sentence you are undergoing is the longest term of imprisonment you have served, and I am mindful of that. I am also conscious of the principles of totality and proportionality when sentencing you.
38 As I have stated, Mr Gullaci conceded your offending was serious and that principles of general and specific deterrence, denunciation and just punishment were all relevant considerations.
39 Also, that your offending was committed while a charge was pending and designed to provide an alibi in relation to that offence, which Mr Gullaci conceded appropriately, made your offending serious in itself. He also conceded your offending was compounded by you having a number of prior court appearances for contravening intervention orders, although I note many of those charges are repeated in your prior criminal history as a result of you breaching the orders and being re-sentenced on those same charges.
40 Following the charge relevant to the contravention being issued in August 2015, Mr Gullaci submitted you panicked and came up with the idea of creating a false alibi, however, I note that had been put into action much earlier than that, when Brandi obtained the false document from Tsiknas.
41 Mr Gullaci submitted your offending fell into the mid-level range of seriousness, not at the upper/high end of the scale of seriousness. I agree.
42 I was told something of your background and history. Your mother and father have separated. I was told they maintained a good relationship over their many years of marriage, however, approximately twelve months ago your mother left the family home. You had not spoken to her since, rather, had been living with your father who, since your mother left, had been feeling extremely low". You had been living with and supporting your father since that time. Your mother apparently has an intervention order against your father which he has breached. I do not know anything further about that and I really do not need to. He is no longer able to visit you in custody, although the reasons for this were not clear.
43 You have a brother and a sister, and said you do not have much in common with them. You have a partner, Natalie Showler, and have been together for the past one and a half years. She has visited you a few times in custody, however, for various reasons referred to in paragraph 12, has not been able to continue to do this.
44 There was a reference before me from Ms Showler dated 25 May 2017. She referred to your previous troubles coping with drug addiction and its involvement in your criminal behaviours. She believed you were capable of keeping yourself on the right path. You also had your father’s support. Ms Showler referred to your programs and counselling in custody and that she has seen improvement in you.
45 She will continue to support you when you return to the community.
46 You attended Gisborne Secondary College where you completed Year 10 and commenced an apprenticeship in carpentry when you were 15 years of age and you completed that after four years. Most recently you had been learning about mechanics, as I understand it, through your father’s business.
47 Turning to your work history, at age 19, you worked as a carpenter/tradie at Truss Tech for approximately three years. Then at age 22, you worked as a carpenter/tradie at Sunbury Trusses for a year, then spent three to four years working as an onsite tradie/carpenter doing sub-contracting work. Most recently, as I have said, you were working as a diesel mechanic, in particular with your father’s trucks, for approximately the last year or so prior to your recent remand.
48 Mr Gullaci submitted, and I accept, that apart from the times when you had been in custody you have otherwise had a good work history. He submitted that you would be able to obtain employment with your father or through his business following your release from custody which would assist your rehabilitation.
49 Alcohol use had not been a problem for you. Drugs have. I was told you began using speed intermittently between the ages of 14 and 18, then moving to ice when you were 18. From that time, ice became a daily habit as was such at the time of your remand.
50 You had not undergone any formal rehabilitation prior to being most recently in custody, and despite being on community correction orders in the past, your failure to comply with orders tends to suggest you did not undertake or complete any rehabilitation programs directed to drug use during those times, although I do not have any further information in that regard.
51 You said you were aware you needed to get off drugs, and that drug use was the source of your problems, although Mr Gullaci conceded that awareness was easy to declare in custody, and when in the community time would tell if you were able to remain drug free.
52 You do not have any medical/mental health issues.
53 Whilst you have been in custody you have undertaken 44-hour drug and alcohol program, which you have completed, and that is to your credit, producing a certificate of completion and completion advice for that program (Exhibit 4).
54 In custody you had been working in metal fabrication when at Dhurringile Prison and recently in the confectionary area at Middleton Prison.
55 Eight random urine screens taken during your sentence have produced eight clear screens.
56 Mr Gullaci submitted that while there may be guarded optimism regarding your rehabilitation prospects, you have at least had some stable employment for significant periods and had recently addressed your drug use. This, he urged, would give me some confidence in your rehabilitation upon release from custody.
57 Regarding your rehabilitation prospects, I do have guarded optimism. However, as submitted by Mr Gullaci, I am aware of your good work history, and hopefully that will continue when you are released from prison. Hopefully you will also undergo more programs in custody which will further assist your rehabilitation. When sentencing you, I must seek to maximise your prospects of rehabilitation as they may be.
58 Turning to matters relevant to sentence, Mr Gullaci reiterated your plea of guilty at an early stage and I accept that is so. From the time you were charged on 16 January 2017, this matter moved quickly to your indication of intention to plead guilty in May 2017. Also, I accept you have shown evidence of remorse by your plea of guilty.
59 Mr Gullaci also referred to the delay of being charged for the December offence and I am also aware of that.
60 Mr Gullaci conceded your prior criminal history, for someone of your age, was concerning, although submitted you were still relatively young. Your prior criminal history does concern me. I note you do not have any prior charges for this offending, that is, attempting to pervert the course of justice, although you have a number of prior convictions for breaching intervention orders, which has some relevance to this sentence. I again note that many of the prior matters of contravention of intervention orders are simply repetitions following breach proceedings.
61 Ms Bruhn provided an outline of written submissions by the prosecution relevant to sentencing. She submitted the court must have regard to the maximum penalty for this offence, being 25 years’ imprisonment.
62 Consistent with the authorities, when looking at the nature and gravity of the offence it was clear the offence of attempting to pervert the course of justice was a very serious offence and it is. It is directed at conduct that strikes at the heart of the administration of justice and “public confidence in the administration of justice is vital to the welfare of society”. Ms Bruhn referred to R v Buscema[2], in which the court, amongst other matters, noted that this offence can be committed in a wide range of circumstances and the particular circumstances of each case will inform the gravity of the offending.
[2] [2011] VSC 2006
63 Ms Bruhn submitted your offending also fell at the mid-range, not at the highest range of seriousness.
64 Relevant to that conclusion and assessment of the gravity of your offending, the prosecution relied upon your conduct being motivated by desire to avoid prosecution for contravening an intervention order and likely imprisonment following such a charge. You provided misleading information to the police, constituting a false alibi. Your offending was premeditated, as the tow truck receipt was obtained on or around 13 December 2014, prior to you being charged with a contravention offence on 17 August 2015. You had also used other people to assist you in this offending.
65 Ms Bruhn conceded there had been an element of delay. Turning to your particular circumstances and history, this offending she submitted, occurred while you were on a community correction order. Ms Bruhn submitted the nature of this offence of attempting to pervert the course of justice and your prior criminal offending showed an unwillingness by you to comply with the law and a lack of regard for the law. I agree.
66 During the hearing, I was referred to a number of authorities, including the following.
67 In R v Buscema[3], Nettle JA sentenced the offender on a charge of attempting to pervert the course of justice. The offending involved making two false statements to police on 22 August 2009, in essence providing a false alibi for a person, John Coombes. As at 29 October 2009, the appellant maintained the two earlier statements were true. The appellant was charged on 2 November 2009 with attempting to pervert the course of justice (offending over approximately one and a half months in total).
[3] [2011] VSC 2006
68 His Honour noted the seriousness of this charge as ordinarily necessitating a custodial disposition. His Honour noted the offence could be committed in a wide range of circumstances which would inform the gravity of the offending including :
(a)the consequence which the offending was calculated to avoid (in your case avoiding implication in offending on 13 December 2014 and likely imprisonment);
(b)the time for which the deception was maintained and whether it was actively repeated or persisted in or merely allowed to continue (in your case you actively sought the false alibi documentation and kept it many months for future use if the need arose, and it did);
(c)whether the deception involved any other person (in your case it did, Brandi and Tsiknas);
(d)whether any threat or violence was involved (not the case here);
(e)whether the offence was spontaneous or premeditated (here, pre-planning and premeditated);
(f)whether the deception resulted in the deception of the court or creation of false public records (not the case here).
69 This list seems to me to not be exhaustive.
70 I also note the documentation you obtained was to prevent you being punished for breaching violence intervention orders (serious offending in itself and for which you had a prior history).
71 His Honour referred to current sentencing practices at the time, that is in 2011 (see paragraph 17), and referred to the difficulty comparing cases factually (see paragraphs 18-23).
72 In Byrne v The Queen[4], the appellant was involved in a motor vehicle collision and then falsely reported to police his car had been stolen.
[4] [2015] VSCA 294
73 As I discussed with counsel, in that case the appellant had a relevant mental impairment (see paragraphs 7 and 24-25). Not your case. In Byrne, his deception was short (from 21 June 2014 (collision) to 24 June 2014). On the latter date, police told the appellant that they did not believe his car had been stolen and the appellant was charged the next day (25 June 2014).
74 In The Queen v Semaan & Ors[5], Beale J set out the seriousness of the offending (paragraphs 64 and 65). Hanna Semaan also continued to falsely assert her innocence. Megan Beljulji was found guilty of two charges of attempting to pervert the course of justice and the circumstances of those attempts were set out in paragraphs 81-84.
[5] [2016] VSC 667
75 In Tognolini v R[6], the appellant arranged for two girls to attend a solicitor’s office and to make false affidavits, stating that the allegations made by the complainants against him were false and that "complainants often tell lies".
[6] (2011) 32 VR 104
76 In his evidence, the appellant said he suggested the girls make affidavits saying KB and the other girls were liars but denied offering drugs or money.
77 The court in Tognolini referred to R v Rogerson[7] and that
"action taken to prevent the institution of a prosecution is as much an interference with, or impairment of, the admission of justice as action taken to obstruct the conduct of a prosecution after it has commenced."
[7] (1992) 174 CLR 268 at [277-278]
78 Sentencing statistics for other cases for attempting to pervert the course of justice were also referred to in that decision (see paragraph 55).
79 As I discussed with counsel, it is difficult comparing cases factually as facts vary enormously case to case, as do all matters personal to an offender and in mitigation of sentence. Sentencing statistics, whilst helpful, are also of limited assistance. Ultimately, I must determine the appropriate sentence in your case, mindful of principles relevant when sentencing for offending such as this and the facts of course of your offending.
80 Turning to sentencing purposes, Ms Bruhn submitted your offending undermined the integrity of the justice system and caused unnecessary diversion of police resources. Specific and general deterrence, denunciation and punishment were important factors in sentencing for this offending.
81 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this, as is the need for specific deterrence.
82 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I remain concerned about that, however, should you continue to undergo programs when in custody, when offered to you, that concern will be hopefully reduced.
83 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. In my opinion, the only appropriate disposition is a term of imprisonment for this offending.
84 You were previously sentenced at Heidelberg Magistrates’ Court on 24 October 2016 to a head sentence of one year and eight months’ imprisonment with a non-parole period of 12 months (with 39 days declared as pre-sentence detention).
85 Section 14 Sentencing Act 1991 is applicable when sentencing you.
86 I sentence you as follows.
87
On Charge 1, convicted and sentenced to 15 months’ imprisonment and I direct that 6 months of the sentence I have imposed today be served cumulatively upon the head sentence imposed at Heidelberg Magistrates’ Court on
24 October 2016.
88 That results in a head sentence of 2 years and 2 months’ imprisonment. So just to make it clear, counsel, that is 1 year 8 months plus 6 months, on my maths, is 2 years and 2 months' imprisonment. And I set a new non parole period of 18 months. It was originally 12. I have set a new non-parole period of 18 months to commence on 24 October 2016, i.e. that was the date at the Heidelberg Magistrates' Court.
89 I confirm that the declaration of pre-sentence detention (s.18(4) Sentencing Act 1991) of 39 days at Heidelberg Magistrates’ Court on 24 October 2016.
90 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it, in other words had you pleaded not guilty but had been found guilty, I would have sentenced you on this charge to a term of imprisonment of 3 years' imprisonment, with a non-parole period of 16 months. I have not taken into account the s.14. I have just said - it would have been obviously a cumulation there.
91 The prosecution made application pursuant to s.464ZF Crimes Act 1958 for a forensic sample. That was consented to by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample and I do so on the basis of the seriousness of your offending and also your prior court appearances. And I must advise you the authorities may use reasonable force in order to obtain that sample.
92 Now, does anyone want help with the maths? Anyone not clear on what the sentence is? So it was originally one year and eight months. I have added six months onto that. Gives you two years, two months. He was originally on parole at 12 months. It is now 18 months so it is an extra six months on the bottom and extra six months on the top, if you like. I am just casually describing it. Not necessarily accurately word for word. And I have declared the PSD as at the date of that hearing in the Magistrates' Court.
93 MS BRUHN: Your Honour, if I could just - - -
94 HER HONOUR: Yes, did you - yes?
95 MS BRUHN: I was just going to say that there is actually no need. We have just been advised from the forensic DNA people that we do not actually need that forensic sample order so my apologies for that. But - - -
96 HER HONOUR: All right. Well, I will withdraw everything I said. It was consented to - - -
97 MS BRUHN: It was.
98 HER HONOUR: - - - but apparently - what will I say that makes it correct? Further information from the prosecutor indicates that application no longer required.
99 MS BRUHN: Yes. My apologies for that, Your Honour.
100 HER HONOUR: No, that is all right. No longer required and therefore, I do not make the order and specifically revoke what I just said.
101 MS BRUHN: It is not required. Yes.
102 HER HONOUR: I do not make the order despite what I have just said. All right?
103 MS BRUHN: Thank you, Your Honour. Thank you.
104 HER HONOUR: All right. Is that all right?
105 MS BRUHN: Yes, Your Honour.
106
MS TURNBULL: Yes, Your Honour. It sounds very clear to us and if there
is - - - any difficulties with Central Records, we will contact Your Honour's associate.
107 HER HONOUR: Yes.
108 MS TURNBULL: It is very clear. Thank you, Your Honour.
109 MS BRUHN: Thank you, Your Honour.
110 HER HONOUR: All right, Mr Yeend. Thank you very much. You will have to go out there, thanks.
- - -
0
4
0