Director of Public Prosecutions v Young

[2015] VCC 1454

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01203

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN YOUNG

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2015
DATE OF SENTENCE:	15 October 2015
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2015] VCC 1454

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Attempt to pervert the course of justice – Offending of short duration - Long history of drug and alcohol abuse

Cases Cited:            DPP and Ibrahim & Ors [2015] VCC 569

Sentence:Total Effective Sentence 2 years’ imprisonment wholly suspended for 3 years – s.6AAA Sentencing Act 1991 declaration

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn	Solicitor for Public Prosecutions
For the Accused	Ms M. Mykytowycz	Valos Black

HER HONOUR:

1Ian Young, you have pleaded guilty to one charge of attempting to pervert the course of justice which has a maximum penalty of 25 years' imprisonment.  This reflects the seriousness with which Parliament regards this offence.

2At the time that you committed the offence you were 57 years old.  You and your wife have a daughter, Naomi, who had taken up with a boyfriend, Douglas Hopkins, having previously been in a relationship with a Richard Hawker.  I was told there was animosity between Hawker on the one hand and Hopkins and your daughter on the other.

3After Hopkins was arrested for allegedly shooting Hawker in the chest with a .22 firearm on 3 January 2013, your wife allegedly asked a Jason Parker who was a close friend of Naomi's and also known to you to give evidence at a bail hearing that Hawker had a tendency to be armed.  Mr Parker had told your wife that he had overheard Hawker say that he had brought weapons to Hopkins' house before, being a baseball bat and a knife.  However, your wife allegedly told him to leave these details out. 

4As Mr Parker was renting the property from you, he said he agreed to give this evidence when speaking with your wife.  However, when called by Hawker's solicitor on 25 March 2013, he told them that what he was asked by your wife to say was not true and he refused to give evidence at the bail hearing which was to be the following day. 

5Within half an hour of this phone call, you visited Mr Parker at his home.  You were intoxicated.  You asked Mr Parker why he was not attending court to support Hopkins and then said, "You need to figure out whose side you're on here.  You're either a fox or a hound.  If you're going to run with the foxes, be prepared to get got."  It is accepted by you by your plea that you intended that Mr Parker give untruthful evidence in keeping with what your wife allegedly arranged.  This gives rise to the charge of attempt to pervert the course of justice. 

6

Mr Parker did not attend court in support of the bail application.  In fact, Hopkins did not make an application for bail the following day but put this off until

24 April 2013 when he was granted bail on a condition that he live with you, your wife and Naomi Young.

7A conversation was recorded at the house through the use of a listening device.  You were heard to say the following:

"So I've gone round and threatened Parker.  I said, 'Listen, Parker.  You want to fuckin' work out where you're fuckin' at now.  You either want to run with the foxes or hunt with the fuckin' hounds.'  I should've had him fuckin' dealt with 'cause I told him I'd fuckin' hurt him.  I know what this is all about.  I threatened him, trying - fuckin' trying to see what side he wants to fuckin' stand on, you know.  I did say to him, you know, 'Fuckin' where are you going, Parker?  You either want to run with the foxes or hunt with the hounds.'"

8Clearly you were not so intoxicated on the day of the offending that you did not recall what you had said to Parker.  It also shows that whilst your offending was not premeditated, you had no regret for what you had done.  However, I factor in that the incident giving rise to the charge was of approximately 20 minutes duration.

9Mr Young, your offending is serious.  You were prepared to threaten, to harm Mr Parker in order for him to give misleading evidence at a bail hearing in a bit to have Mr Hopkins released on bail.  You were wanting Mr Parker to leave out details of his evidence which would presumably paint Mr Hawker as a more threatening individual than was known to be the case insofar as his possession of weaponry was concerned.

10

Your conduct is deserving of a punishment which is just in all the circumstances and must be denounced.  Strong weight must be given to general deterrence in a bid to deter others from behaving as you have.  Having said this, I have borne in mind that Mr Parker had overhead

Mr Hawker say things which were not entirely out of kilter with what you wanted him to say in court.  That is, it was not as if you had wanted him to completely fabricate evidence, so much as leave some important details out. 

11There is no victim impact statement but I have little doubt that Mr Parker took your threat rather seriously, albeit that he maintained his resolve not to give evidence.  I accept that in view of his criminal history and background, the impact on someone like Mr Parker may not have been as great as it might have been if he were not mixing in the same milieu as you and yours.

12However, in the context of a shooting which had recently taken place and which was alleged to have been carried out by a person you were trying to help, I have little doubt that your conduct would have been somewhat intimidating to Mr Parker. 

13I take into account your criminal history which is lengthy, although in recent times you do not have prior convictions for offences of violence.  You do not have any prior convictions for the offence for which I now sentence you.  However, you have broken the law on numerous occasions over the years.  I was told that you were from the old school when it came to criminal activity.  While I understand that this might be part of your character, it does not excuse your conduct in the least and it is nothing to be proud of. 

14You pleaded guilty at a fairly early stage, although at a stage after cross-examination of the complainant, Mr Parker, had commenced.  However, you entered a plea of guilty before the committal hearing was concluded after new solicitors were engaged.  In doing so you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense for trial.  The witnesses and community were spared a little in this regard because of the course you took at the committal hearing.  I allow for a fairly substantial discount in your sentence because of these matters. 

15I also factor in your age and the state of your health.  I was told that you are now 60 years old and you have ongoing problems with your shoulder as a result of your work as a painter.  You recently had some surgery on your shoulder which you are still recovering from and had some other health issues which were documented in material provided to me.  Any time in gaol for you would be somewhat harder than for a fitter and younger man, although you are certainly not in poor health. 

16Since you were in your twenties, you have experienced problems with drugs and have experimented and abused different drugs over the years.  However, you now only use cannabis and abuse alcohol, consuming about a dozen stubbies of beer a day with your first drink being in the morning.  In the past, you have attempted to address your drug issues from time to time, including attending Odyssey House in the 1980s and spending about ten months in another rehabilitation facility. 

17I take into account your background.  You grew up in country Victoria where you have remained living.  Your father worked as a painter and your mother worked as a cleaner.  You had a happy childhood and you felt supported by your parents.  However, your father drank a good deal and sometimes there was disharmony in the family home.  You had an unremarkable time at school and left after completing Year 10. 

18You commenced working as a painter with your father and continued on a self-employed painter.  You encountered a number of injuries through this work.  However, I accept that despite a number of offences being committed by you over the years, you had a strong work ethic as a painter. 

19When you were 19, you met your wife and you married in 1983.  Your marriage has endured despite some difficulties earlier this year.  Unfortunately, your only child has a drug problem and has had a number of boyfriends who are rather undesirable.  Although you have not approved of her boyfriends, it appears that you were sufficiently taken with Mr Hopkins to try to bail him out of gaol. 

20I was told that your co-accused is running a trial in relation to her alleged part in this matter.  I make it clear that I am sentencing you only in relation to your conduct on the day in question.  I take into account delay in this matter which was largely not caused by you, howsoever caused, you have used the time to demonstrate that you are capable of not committing further offences which is relevant to your prospects of rehabilitation.  It was not put that delay has also caused you some anxiety as to your fate and so I will not factor this in. 

21In view of your criminal history, your lack of relevant offending in recent times and your age and health, but also factoring in your problems with alcohol and the serious nature of the offence before me, I rate your prospects of rehabilitation as fair.  I hope that your days of committing offences are over.  If this is not the case, then you can expect to spend ever increasing periods in gaol.  Do you understand that?

22I also warn you that there is a connection between your offending and abuse of alcohol.  If you choose to abuse alcohol in the future and commit offences, then your decision to abuse alcohol may well be regarded as an aggravating feature.  Do you understand that?

23It was submitted by your counsel that a wholly suspended sentence was appropriate in your case and she provided me with a table of cases she had prepared as well some decisions referred to in the table.  In particular, your counsel referred me to a sentence imposed by Her Honour Judge Hampel in the matter of DPP and Ibrahim & Ors [2015] VCC 569. She submitted that Ibrahim was a far more serious example of attempting to pervert the course of justice but then referred to the fact that each of the offenders was sentenced to a wholly suspended sentence.  This is but one case and there are numerous others.  I was also assisted with references to cases by the learned prosecutor insofar as sentencing practice is concerned.

24As the facts in these cases are so variable, they are of limited assistance but I have had regard to these bearing in mind their limitations.  The prosecution submitted that a term of imprisonment in combination with a community corrections order was appropriate.  Without reaching any concluded view in respect of disposition, I arranged for you to be assessed for a community corrections order.  The report is now to hand and you are deemed to be suitable. 

25You have had an alcohol problem for some time and it appears that this has contributed to your offending on this occasion.  However, you have had a number of attempts at being substance free in the past and are yet to achieve this, notwithstanding that you have undergone programs in the past.  At the end of the day, Mr Young, at your age and stage, it is up to you as to whether you wish to stop abusing alcohol.  If you do not stop, you are at risk of committing further offences.  As I have said, if you do so then your decision to abuse alcohol in the future may well be treated as an aggravating feature of any future offending. 

26I have given your case considerable thought.  In the end, despite the Crown's submission, I have come to the conclusion that I am able to do justice to all the sentencing principles by the imposition of a wholly suspended sentence.  However, if you commit any further offence punishable by gaol and I mean any sentence punishable by gaol, then you will face the very likely prospect of going to gaol.  Please stand up.

27You are convicted and sentenced to two years' imprisonment which will be suspended for three years.  If you commit an offence punishable by gaol in the next three years, you will be required to serve the term of imprisonment, that is, two years' gaol unless you can show exceptional circumstances had arisen which would make it unjust to do so.  

28If not for your plea of guilty, I would have sentenced you to four years' imprisonment with a non-parole period of three years.  You are to undergo a forensic sample by way of a buccal swab to be taken by way of a swab of saliva from the mouth and I make the order because of the seriousness of the offence, because the order is not opposed, because of your criminal history and because it is in the public interest to make the order.  If you do not cooperate with the taking of the sample and I warn you that an authorised officer can use reasonable force in order to extract a sample from you. 

29Take a seat, please.  Is there anything arising?

30MS FLYNN:  No, thank you, Your Honour.

31MS MYKYTOWYCZ:  No, Your Honour.

32HER HONOUR:  No, all right.  I will just sign those orders.  Ms Flynn, I know you have to go to another court.

33MS FLYNN:  Thank you, Your Honour.

34HER HONOUR:  I will sign these and perhaps provide those to your instructor after I leave the Bench if that is convenient.

35MS FLYNN:  I'm grateful.  Thank you, Your Honour. 

36HER HONOUR:  Yes, all right then.  We will now adjourn.

‑ ‑ ‑