DPP v Fairclough

[2020] VCC 152

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01841

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON FAIRCLOUGH

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2020
DATE OF SENTENCE:	25 February 2020
CASE MAY BE CITED AS:	DPP v Fairclough
MEDIUM NEUTRAL CITATION:	[2020] VCC 152

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of guilty; attempt to pervert the course of justice; producing falsified medical certificates to Drug Court on two occasions

Legislation Cited:     Sentencing Act 1991 s6AAA

Cases Cited:DPP v Lam [2017] VCC 606; DPP v Furlong [2016] VCC 991; DPP v Tansey [2016] VCC 1051; R v Renzella [1997] 2 VR 88

Sentence:                 169 days imprisonment (time served)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz	Office of Public Prosecutions
For the Accused	Ms E. Byrt	Papa Hughes Lawyers

HER HONOUR:

1Aaron Fairclough, you have pleaded guilty to a charge or attempting to pervert the course of justice.  The maximum penalty for this offence is 25 years' imprisonment, which reflects how very seriously offences of this nature can be regarded. 

2You have also admitted a long criminal history, to which I shall refer shortly, but the last couple of years of which interrelate with this offending.

3The charge arises from two occasions in June 2018 when you produced falsified medical certificates to the Drug Court.  On 23 May 2018 you had been sentenced in the Magistrates' Court to an aggregate of 12 months' imprisonment to be served by way of a drug treatment order.  That order operated so that you were released the day of the order, for the purposes of complying with the drug treatment conditions, which imposed a quite intense program of attendances for drug screens, drug and alcohol counselling, and for reviews at Court.

4The Drug Court regime recognises that participants have longstanding drug addictions and interaction, and longstanding interaction with the criminal justice system usually, and imposes sanctions or penalties for non-attendances or breaches of the Order.

5On 7 June 2018, barely two weeks after you had commenced the Order, on a day that you were required to attend the Melbourne Magistrates' Court for a review, knowing you had failed to attend a drug screen and counselling over the previous days, you altered a medical certificate that you had previously legitimately obtained on 4 June that certified you unfit to work for one day.  You altered that certificate to state that you would be “unfit for Drug Court duties” from the 4th to 7th June.  A week later, on 14 June, for similar reasons, you provided a further altered certificate based on the original legitimate one, seeking to excuse your non-attendance for counselling and drug screens in the preceding few days.

6By 26 June, a clinical adviser at the court had made enquiries with the medical centre that had issued the original certificate, and the falsity of the certificates was detected.  When you appeared for a Drug Court review on 28 June the Magistrate raised the issue of the false medical certificates with you, and you ran from the court and absconded.

7On 19 September 2018, your drug treatment Order was cancelled and you were ordered to serve 219 days' imprisonment, being the original sentence of 12 months, less pre-sentence detention being time in custody prior to that order being imposed.

8Your circumstances and history since this offending are relevant to, but also complicate, the decision I must make about your sentence.  It is therefore necessary to set some of them out to explain that.

9After you absconded on 28 June 2018, it is alleged that you committed some further offences between 2 and 4 July.  You were arrested on 4 July for those matters, and remanded in custody.  I am told that you intend to contest those charges and they are yet to be determined.  You remain remanded for them at present, until a contest mention on 31 March of this year at Melbourne Magistrates' Court.

10Meanwhile, on 10 August 2018 you had been brought before the Drug Court and penalties or sanctions totalling 22 days' imprisonment were imposed.  While there is some conjecture as to the precise breakdown of that total, it appears that as at 28 June you had accrued penalties of 15 days, so it is likely that some of the 22 days was for submitting the false certificates, and that should be taken into account as other punishment for the offending for which I am sentencing you, and I have had regard to it.

11As I have said, the Drug Court imposed 219 days' imprisonment for the unexpired portion of the original sentence that it had imposed.  While that was for offending in 2017 and 2018, for which the drug treatment order had been imposed, it is relevant for me to consider that period of imprisonment, the 219 days, as part of the total period you will have spent in prison during the time since the offending for which I sentence you.

12Also relevant under what is called the totality principle, is that there are other periods which you have spent in custody since this offending which have not yet, and may never, be credited as pre-sentence detention towards a sentence.  Whether they are or not depends on the result of the contested matters.  In particular, between 4 July and 10 August 2018 you were remanded on the charges that have not yet been determined, being approximately five weeks, and after the 22 days' imprisonment as penalties was imposed by the Drug Court, there were a further approximate 17 days, on my calculation, until you were sentenced to 219 days, and no pre-sentence detention was able to be declared to take those intervening days into account.

13I am not going to treat them as direct or even indirect pre-sentence detention in this case, as I would have been able to do indirectly under principles from Renzella’s case,[1] and that means that those periods are available as pre-sentence detention if you are eventually sentenced on the alleged July 2018 offending. However, I have had regard to the fact that you spent more than

[1]R v Renzella [1997] 2 VR 288

10 months in custody for various reasons from 4 July 2018 to 19 May 2019, and were then again remanded from 9 September 2019 on the current matters after an indication that you would plead guilty.  The period since 9 September 2019 does count as pre-sentence detention, which now totals 169 days or a little over five and a half months.

14I also take into account that although there was not enormous delay in the charge with which I am dealing being brought to a first mention, the timing meant that you lost any potential for overlap or concurrency with the earlier times you were serving, and, in particular, any of that 219 days.

15You have pleaded guilty to this charge.  I take it to have been at a relevantly early stage of committal mentions, although not the earliest possible opportunity.  That has saved the need for disputed hearings and for witnesses to attend court.  You are entitled to some leniency for that utilitarian value.  Also your plea of guilty acknowledges responsibility for your offending.  I am also prepared to infer some remorse from it.

16Your immediate reaction of running from the court on 28 June 2018, when confronted with the allegation of submitting false certificates, does not reflect any immediate instinctive remorse by you, and is in contrast to one of the cases of this type,[2] which I have read where the person's conscience got the better of him and he self-revealed the matter of his own volition to one of the counsellors or a Drug Court official.

[2]DPP v Lam [2017] VCC 606

17It must be salutary to you to realise that had you not engaged in this offending and submitted to whatever penalties the Drug Court might have imposed for non-attendances back in June 2018, the ultimate impact on you would probably have been much less, and you have been in custody for many months now with the opportunity of realising that, and I accept that you now genuinely regret what you did, both for the consequences to you and at least in part for the consequences to the system – the latter is genuine remorse.

18I turn now to your personal circumstances.  You are now aged 39 and were 37 at the time of this offending.  I am told that you were raised in a family where both of your parents worked, although the family was not financially well off.  You left school in Year 9, aged less than 15, apparently to the disappointment of your parents.  You had been bullied initially at primary school, and had to move schools, and I infer that you never settled well into school after that.

19However, from the time of leaving school you took up full-time work, for some five years working as a labourer at the fruit markets.  Then you worked as a barman for some years, and then in your mid-20s you obtained a truck driver's licence and you were employed driving tow trucks for some eight years.

20Apparently you had used cannabis since your early teens, and that is reflected in your early criminal history. Starting when you were about 20, you had an ongoing involvement with offences of dishonesty and driving offences, as well as in using and possessing cannabis over the following few years.  However, I am told that it was not until you were truck-driving that you were exposed in that industry to use of amphetamines and methylamphetamines, and you took those up and became a heavy user of them.

21Your first term of imprisonment for offending that no doubt followed from the drug abuse, was when you were aged 30.  I am told that on your release you returned to work truck driving but also began to use heroin.  You then served a further term of imprisonment for further offending, predominantly for drug and drug related offences.

22After your release from that second term of imprisonment, when aged about 33, you moved away from Melbourne with your then partner, and lived a more stable life.  Between 2011 and 2017, you do not seem to have come before courts.  I am told you moved to Sealake and obtained work in Swan Hill at a local abattoir, and sustained that work, and were living in a stable relationship and you and your partner had had a child.  However, unfortunately, you suffered a serious work injury, losing the top of your thumb, and for that you had to undergo treatment in Melbourne.  That seems to have again exposed you to drug associates.  I am told that you were off work about six months with that injury, and although you returned to light duties at the Swan Hill abattoir, by then, because you had resumed drug use, your relationship broke up and you then moved back to Melbourne.

23I am told that you were using methylamphetamine at that stage, but it was after your father's sudden death in 2017 that your drug use escalated significantly. Particularly, using methamphetamines led you into offending for which you served some imprisonment in 2017 to be followed by a CCO, but you breached that CCO and for that and for further offending you were sentenced by the Drug Court, as I have said, on 23 May 2018.

24I must take into account your criminal history, and it is certainly not to your credit.  It indicates that you have struggled to comply with therapeutic and rehabilitative orders in the community, despite being given those opportunities.  Nevertheless it does appear that you were able to lead a stable and essentially law abiding life for some years when out of Melbourne, and away from drug using associates, and also in a stable relationship.  I am told that you hope on eventual release from prison this time to again move away from Melbourne, and it is clear that if you can maintain your resolve to stay drug free, you are capable of leading a stable, responsible, and hard working life clear of the justice system.

25You have a history of sustained employment in various fields which, as I have said, unfortunately last was interrupted by a serious work injury.  If you can manage to address what is clearly a long term problem with drug use your prospects of rehabilitation appear reasonable.  Staying away from drug use has not been easy for you, and you have reverted each time, and despite rehabilitative attempts.  I am told that you have a partner who is supportive and with whom you will live on your release from prison.  I am also told that your mother has remained very supportive, although deeply ashamed of your criminal history.

26I am told that due to your giving evidence about an offence you witnessed in 2013, when in custody you spend that time in protection.  I take into account that that will have inevitably imposed restrictions on you, and therefore make your time in custody somewhat more onerous than for someone free to be classified in the general prison population.  Nevertheless you have been working as a unit billet, which reflects that you are regarded as hard working and worthy of some trust.  I am told, although there are no certificates produced as evidence, that whilst in custody this time you have undertaken a drug and alcohol and depression course, a six hour drug program, and the ADAPT program.  Apparently there has been one drug screen taken from you several months ago which was clear.  You have also undertaken some educational courses in custody, in food handling and floor polishing.  However, you hope on your release to be able to resume truck driving employment.  I take the courses you have undertaken, and particularly the programs to address your drug abuse, as signs that you do want to address your problems and try to rehabilitate.

27The offence of attempting to pervert the course of justice is a very serious one as is reflected in the high maximum penalty of 25 years' imprisonment.  That is because the justice system depends upon people being able to trust its integrity, and attempts to pervert the course of justice undermine general confidence in the justice system.  They also, if allowed to go unpunished, provide a motivation or incentive for other people to attempt such actions.

28Of course, the crime of attempting to pervert the course of justice can be committed in many different ways, and what you did is at the lower end of potential seriousness in that you did not involve any other person in your deception, and I note it was not carried out by trying to influence or intimidate any other person to give false evidence, or to interfere with anyone else's ability to give evidence.

29What you did occurred on two separate dates but only a week apart, was discovered within a couple of weeks and ultimately did not make a major impact on the Drug Court's operation or the ultimate sentences that were imposed on you.  However, it was a blatant attempt to deceive a court, including the magistrate and the various court officers who administer the Drug Court system. 

30As was pointed out by Her Honour Judge Hampel in the case drawn to my attention of DPP v Furlong,[3] the Drug Court was an important and innovative initiative designed to address the complex issues surrounding long term drug users and their commission of other offences and the regime was directed at rehabilitation. That regime relies on trust to a great degree to enable people placed on drug treatment orders to fulfil the trust placed in them, through adherence to the programs, and the future and ultimately expansion of this type of court program depends on the community being able to rely on the integrity of that system.  Whilst what you did was relevantly simplistic, it must be viewed in the context of the capacity of acts such as yours to undermine the system of justice administered through that court.

[3] [2016] VCC 991

31I was helpfully provided by your counsel with three sentences imposed by other judges of this court in the last few years for offences of attempting to pervert the course of justice in similar manner to yours, that is, by producing falsified medical certificates to the Drug Court to try to excuse and avoid penalty for non-compliance with attendances.[4]  I have read each of those decisions now and take into account that of course each case turns on different facts because every individual has different circumstances that have to be taken into account. Each of the offenders in those cases did have slightly different circumstances, but they are all useful comparisons, in my view, because of how the offence was carried out.  The case of Furlong[5] seems to have had certain further issues that led to a non-custodial sentence, namely recent release from immigration detention.  Also, all of them discussed the principle of totality to be applied because of the manner in which sanctions are imposed by the Drug Court itself, and reinstatement of unexpired terms.

[4]DPP v Lam [2017] VCC 606; DPP v Furlong [2016] VCC 991; DPP v Tansey [2016] VCC 1051

[5] [2016] VCC 991

32There was also mention of the issue, again going to totality, of the loss of the chance to have at least some concurrency between the reinstated sentence and the sentence imposed for this charge, if there is delay in the charge of attempting to pervert the course of justice being brought to fruition.

33Sentencing principles in this case require the sentence to reflect denunciation of offending of this nature for the reasons I have already outlined.  Also, general deterrence – general deterrence being to send the message to others tempted to engage in this type of offending, that it will attract stern punishment.  Specific deterrence is also relevant – to try to deter you from acting in a similar way in future.

34I have already mentioned that I regard your prospects of rehabilitation as reasonable if you can stay away from drug abuse, but I do not think that will be easy for you, so in that sense your rehabilitation prospects must be seen as somewhat guarded.  Although rehabilitation is not the principal purpose of this sentence, I consider that your endeavours to rehabilitate so far are to be taken into account and should be encouraged for the future, so the sentence should not be so crushing as a disincentive to you to continue along those lines.

35In light of your criminal history and the seriousness of the nature of the offending, I am of the view that a sentence of imprisonment is required to achieve these sentencing purposes.  In practical terms you cannot be released immediately, but I would have reached the view I have, that is that some imprisonment is required, even without that practical aspect.

36Taking into account all of the matters I have outlined, as I have said, I am of the view that a term of imprisonment is required.  Taking into account the various aspects of the totality issue, as I have explained them, and all of the other considerations, I have reached the decision that the length of time you have spent in custody so far should be sufficient, and I am going to impose a sentence that effectively is time served.

37Would you stand up now, please.  Aaron Fairclough, on the charge of attempting to pervert the course of justice you are convicted and sentenced to 169 days' imprisonment. I declare 169 days pre-sentence detention reckoned served.

38That means that you have completed this sentence, although, as I understand it, you remain remanded on other matters.

39I state for the purposes of s.6AAA or the Sentencing Act that if you had not pleaded guilty to this charge but been convicted of it after trial, and if all other circumstances had been the same, I would have imposed a sentence of eight months' imprisonment.

40All right, just take a seat while the orders are prepared and I check if there were - there were no ancillary orders?

41MR GOETZ:  No, Your Honour.

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