DPP v Haywood

[2016] VCC 123

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-01896

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE HAYWOOD

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	18 February 2016
CASE MAY BE CITED AS:	DPP v Haywood
MEDIUM NEUTRAL CITATION:	[2016] VCC 123

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hughan
For the Offender	Ms B. Warnock

HER HONOUR: 

1Mr Haywood, you have pleaded guilty to one charge of attempting to pervert the course of justice and to an uplifted summary charge of contravening a family violence order. 

2The maximum penalty for attempting to pervert the course of justice is 25 years' imprisonment.  The maximum penalty for contravening a family violence final intervention order is two years' imprisonment.

3The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. 

4Both offences relate to a series of telephone calls that you made from gaol in the period 11 June 2015 to 30 June 2015.  The telephone calls were made to your former partner.  You were in gaol because you were on remand in relation to a significant assault on your former partner which had occurred on 31 May 2015.  During the phone calls you discussed a number of matters with your former partner but a considerable part of your focus was on attempting to persuade her that she should either withdraw or change her statement to the police about the circumstances of your assault on her.  It is clear that you were repetitively and, in quite forceful language, trying to get her to make the situation look better for you when it came to court ultimately.  It, of course, was not a particularly sensible thing to do what you did in those calls given that you knew, as did your former partner, that the calls were being recorded. 

5It is not clear why the calls stopped, but you were interviewed on 7 August 2015 about this.  You said to police that you were only asking her to tell the truth.  That clearly is not quite accurate.  That may be part of it, but it was also clearly an attempt on your part to try and get her to change things in her statement to make things look better for you.

6Clearly you should not have made these calls.  It is a serious matter to try and get somebody to withdraw or change what they have said to police.  It is not an easy matter for anybody to go and make a statement to the police in these kinds of circumstances.  It is important people tell the police that they are telling the truth, and there are penalties for the person who makes a false statement to the police.  So that is clearly a serious matter.  The administration of justice requires that people are able to tell the police the truth and that they do so knowing that there are penalties if they do not tell the truth.  You attempted to undermine all of that process.  You also knew that there was an intervention order in place, which did not stop you speaking to your former partner, but did stop you trying to put this kind of pressure on her to do what you wanted. 

7It is relevant that this offending occurred relatively shortly after you were taken into custody when no doubt you were, to use a colloquial expression, fairly wound up about the situation.  Since then you have had some time to reflect.  That is because you were sentenced, on appeal, on 25 September 2015 to a term of imprisonment of ten months.  Your release date for that sentence, as I understand it, is 30 March 2016. 

8In sentencing you, I have taken into account that Ms Tegg does not appear to have gone along with you and, in the conversations as set out in the summary, appears to have been reasonably robust in her response to you.  I do not consider that she in herself has suffered great harm from what happened.  The harm is more the potential harm to the justice system and also your disregard of the court order in terms of the intervention order. 

9I have taken your personal circumstances into account in sentencing you.  It is clear that you had a very disrupted and difficult childhood.  It appears from your prior criminal history that you have been in considerable bother with the law in Western Australia, some violence-type offending, but more particularly drug-related or driving offending.

10I note that you did appear in court in Western Australia on 8 January 2013 in respect of a breach of a violence restraining order.  Exhibit B is a statement of material facts relating to that appearance.  That appearance related to text messages that you sent a previous former partner in relation to her and another child that you had.  My view is that that offending was considerably more serious than the offending for which I am dealing with you.  There were direct threats made of a violent nature.  In the calls that you made from custody, there are no direct threats or indeed no threats per se and there is no abuse directed at your ex-partner.

11I note, and accept, that you wish to try and resume your relationship with your daughter.  You accept that if you are going to do that, you are going to have to meet requirements that the Department of Health and Human Services will require you to comply with.  Your counsel says, and I accept, that you have had discussions with the Department and understand that they will be requiring you to undergo various assessments and treatment in respect of drug and alcohol issues as well as other issues.  You have had in the past considerable difficulties with drugs.  You now, hopefully, have had some time away from drugs to be able to consider what your strategies might be when you come out of custody.  It is encouraging that despite the time you have been spending in lockdown, you have at least managed to do two courses whilst in custody.  Clearly, if you wish to resume a relationship with your daughter, you are going to have to meet quite onerous requirements. 

12You have some support in your relationship with your mother which is now of a much more positive nature than it was in the past, by the sound of things.  She is able to provide you with accommodation and the prospect of employment with another relative.  That is all positive in terms of your rehabilitation.  You are a relatively young man and you are quite capable of rehabilitating yourself if that is what you want to do.  Clearly you have an incentive to do that in your relationship with your daughter.  I consider your prospects for rehabilitation to be reasonable.

13In sentencing you, I have taken also into account that you have spent a significant time in custody and that a large part of that time has been in lockdown.  That has made that time in custody far more onerous than it would otherwise have been.  You now, I am sure, understand the serious nature of your offending, and I consider that in respect of this type offending a degree of specific deterrence will have already been achieved.

14I consider that a sentence of imprisonment is warranted.  It is very important that all people in the community understand that this type of behaviour is going to meet with a harsh penalty, that is, attempting to pervert the course of justice or breaching intervention orders, so general deterrence is very important.  I think some degree of specific deterrence is also required so that you understand that you will face harsher penalties if you ever repeat this type of behaviour.

15I think just punishment also requires a prison sentence for this offending.  I consider that a prison sentence combined with a community correction order would be more punitive than is required in the circumstances.

16I accept your counsel's submission that a degree of concurrency would be appropriate.  I accept that in application of principles of totality and proportionality that I should take into account that you have spent some time in custody already on connected offending and that a degree of concurrency would be appropriate.  I also consider that concurrency between sentences for each of these offences is appropriate because it is one course of conduct that has given rise to both charges. 

17I accept that you have found your time in custody more difficult because of your separation from your daughter. 

18In respect of Charge 1, attempting to pervert the course of justice, you are convicted and sentenced to three months' imprisonment.  In respect of Summary Charge 2, you are convicted and sentenced to one month's imprisonment.  So that is concurrent.

19The other thing I did take into account, and I should have said this earlier, was that I have taken into account your plea of guilty in respect of these offences.  You are entitled to a significant discount for that because you have saved the time of a contested hearing of any sort and also perhaps difficulties for your former partner in having to give evidence.  So you are entitled to a discount for that. 

20But for your plea of guilty, I would have sentenced you to a term of imprisonment of six months.

21I have made the order for the taking of a forensic sample from you.  I made that order because of your prior convictions, that the order is by consent, and I consider that the granting of the order is in the public interest.  You are aware that if the authorities come to take a sample from you that you are required to cooperate with them.  If they do come, they will take it by way of a buccal swab from your mouth, a saliva swab.  If your DNA is already on record, then they will not do that.  If they come to do that, then you must cooperate with them.  If you do not cooperate, then they are entitled to use reasonable force and to take a blood sample from you.  I am sure that you will cooperate with them.

22Thank you.  Take your seat.

23Now is there anything of a technical nature that I have failed to address or that needs to be done in respect of that sentence?

24MR HUGHAN:  No, Your Honour.

25HER HONOUR:  Ms Warnock, from your point of view?

26MS WARNOCK:  I don't think so, Your Honour, no.

27HER HONOUR:  All right.  Thank you for your assistance.

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