R v Heart

[2015] VCC 772

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-02091

THE QUEEN

v

ELISSA TONI HEART (also known as HORVATH)

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March, 27 March, 28 April and 3 June 2015
DATE OF SENTENCE:	10 June 2015
CASE MAY BE CITED AS:	R v Heart
MEDIUM NEUTRAL CITATION:	[2015] VCC 772

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F. Holmes	OPP Victoria
For the Accused	Ms O. Trumble	James Dowsley and Assoc.

HIS HONOUR:

1       Elissa Toni Heart, you have pleaded guilty to one charge of attempting to pervert the course of justice.

2       At the beginning of the plea hearing on 20 March, the prosecutor, Ms Holmes, opened the circumstances of the offending, which occurred between 27 April 2011 and 18 May 2011, by reading from a written summary of prosecution opening for plea that was tendered.

3       A number of factual matters were unresolved at the conclusion of proceedings on 20 March and the hearing was adjourned for mention on 27 March, then further adjourned until 28 April, and finally adjourned to 3 June, on which date sentencing submissions were completed.

4       On 3 June an "amended summary of prosecution opening for plea" was filed and exhibited.  The document contained additional material which resolved the areas of factual dispute between the parties and represented the agreed factual basis on which I was asked to sentence you.  The original prosecution opening was amended by adding paragraphs 3, 5 and 29, and an additional sentence to paragraph 4.

5       In short, your offending concerns steps taken by you to have your child, Mia, delivered to your custody on the basis of false information.

6       Mia was born on 9 July 2007 to you and David Lowe.  Pursuant to an order made in the Children’s Court, Mia was placed in the day-to-day care of
Mr Lowe in July 2010.  In November 2010, you unsuccessfully sought to have the relevant protection order revoked.

7       On 27 April 2011, you affirmed affidavits containing false material, suggesting that the child had been in your custody and that Mr Lowe had refused to return the child after access.  These documents were subsequently filed in Family Law Division of the Federal Court (Family Court) at the Dandenong Magistrates Court and relied upon by you to obtain a recovery order made on 18 May 2011, ordering the child to be delivered to you.  This Order was made in the absence of Mr Lowe, who had been served with documents in which the hearing date had been changed from 18 May 2011 to 18 August 2011.

8       Pursuant to the order, the child was removed from Mr Lowe but kept in police custody pending inquiries, after Mr Lowe expressed concern that there “was something not right”.

9       After an urgent hearing, the recovery order was rescinded and the child returned to Mr Lowe.

10      The particulars of the charge concern the swearing of the false affidavit material, testimony by you in court, which whilst not false in itself, implied the accuracy of the false affidavit material and that the material served on
Mr Lowe contained the correct court date, together with the alteration of the court hearing date itself on the documentation served on Mr Lowe, which it is conceded you either changed or had someone else change.

11      A victim impact statement was tendered, indicating that the child was "severely emotionally impacted by the crime and has ongoing emotional issues because of it".

12      Ms Trumble appeared for you.  She relied on a written outline of submissions, an ARBIAS report from Dr Melissa Slayo, dated 19 January 2015; a psychological report from Carla Lechner, dated 5 March 2015; two letters from John Redman, dated 23 February 2015 and 17 March 2015; as well as a letter from Gerry Robinson of the Salvation Army Community Support Centre, dated 6 May 2015.  All of these documents were tendered.  An additional report from Carla Lechner, dated 20 April 2015, was also tendered on 3 June.  This addressed some of the matters unresolved on 20 March.

13      Your counsel also relied on material extracted from medical records, confirming that in December 2013, you attempted suicide by carbon monoxide poisoning, by placing a hose on a car exhaust and then overdosing on medication.  After the second attempt you were missing for three days and then found naked in bush near Morwell.

14      You were involved in a motorcar accident in 1994 and sustained a closed head injury.  There was concern that you suffered an acquired brain injury as a result of these injuries, but after investigation it seems you have not.

15      Ms Trumble detailed your background.  You turned 40 last December.  You left school at Year 11 and then did a 20-week hospitality course.  You have spent much time travelling and working, returning to Australia not long before the motorcar accident I referred to earlier in which you suffered serious injuries. Post-accident you have worked in market research, domestic cleaning and then five years as a mail sorter.

16      You have three children, a daughter aged ten, Mia now seven, and a son aged two.  The father of your eldest child was abusive towards you.  You lost custody of this child in 2006 when you and your partner separated.  You lost contact with them both about two years ago.

17      Your mother lives in Queensland and you have two older sisters.  Contact with your family fractured because of their role in you losing custody of your ten year old daughter and you became disconnected from them.  Additionally a sister of yours contacted Mr Lowe when it seems she was concerned for the welfare of Mia, about 15 months after her birth.  Prior to this contact Mr Lowe was unaware of Mia’s existence.  He subsequently obtained custody.  Mia had been assessed by the Royal Children’s Hospital and found to have a number of relatively minor injuries, such as bruises and grazes.  You agree that these injuries had been sustained whilst Mia was in your care, although it is not claimed that you caused the injuries.  You nevertheless admit that you did hit Mia whilst she was in your care, just prior to her being removed from your care in mid-2009.  You also accept that at the time of Mia’s removal there were legitimate concerns about your ability to care for her.

18      Your father died in 2008 and your mental health deteriorated.  It was in this setting of mental instability that you lost custody of Mia.  

19      You then had difficulty seeing Mia because of the distance between Horsham and Phillip Island, the respective residences of you and Mr Lowe.

20      You instructed your counsel that you had fears for Mia’s well-being during the period leading up to the offending.  In part, these concerns were because of what your sister, who had originally contacted Mr Lowe, told you.  It was common factual ground between you and the prosecution that you had a "delusional" belief about Mia’s welfare.  This belief was part of your reason for committing the current offence concerning the application in the Family Court.

21      It seems that in early 2011 the Department of Human Services (DHS) involvement ceased when the Children’s Court care and protection order terminated and the Family Court became the venue to determine custody and access.  

22      You have now not seen Mia for about four years, but are proposing some action in the Family Court.

23      You also lost custody of your third child, a boy, in October 2013.  Your then partner was violent towards you and in this setting DHS removed the child from your care, at least until satisfied that you had separated from your partner or that he no longer represented a risk to the child.

24      Your counsel said the relationship had now ended and you have supervised contact with your son, two hours per fortnight.  He is in foster care.

25      As part of your right to access, you are required to attend for psychological and psychiatric assessments, drug testing and other restrictions on your conduct.  You have recently undergone the Tweedle program.

26      Your suicide attempt, to which I referred earlier, occurred not long after losing custody of your son and your counsel relied on the circumstances of this as evidence of your very fragile mental state at that time.

27      You have a criminal history. You were released on a good behaviour bond in 1994 for obtaining property by deception (ten charges).  This concerned
low-level credit card fraud and you were only 17 at the time of the offending. In 1995 you were convicted and fined for dishonesty and drug offending.
I agree with your counsel that although these matters are relevant, they are of limited significance.  You have no outstanding matters.

28      You must benefit from your plea of guilty.  It saves time, expense and the need for witnesses to give evidence.  It represents an acceptance by you of your offending and facilitates the course of justice.

29      Ms Lechner diagnosed you as having a borderline personality disorder, clinical depression and a cannabis use disorder, albeit in the early stage of reduction.  She thought your ability to cope with stress, to exercise good judgement and to inhibit impulses was, at times, severely hampered by your mental health issues.  In particular, Ms Lechner thought your “long-standing psychological and psychiatric problems” would be “significantly aggravated in a custodial setting”.  Without contact with your son, Ms Lechner thought your level of distress was likely to increase.  She was concerned about your risk of suicide in gaol.

30      In her supplementary report dated 20 April 2015, Ms Lechner confirmed she understood the difference between your current offending, occurring in April/May 2011, and an incident in December 2011 when you took Mia from your sister’s care, contrary to court orders.

31      Ms Lechner also expanded and clarified what constitutes a borderline personality disorder and the application of this diagnosis to you.  

32      In particular she noted your condition has caused you “immense and significant distress” and impaired your capacity to be involved in relationships, to sustain employment and to function consistently as a parent.  She noted that your impulsivity, your engagement in high risk and potentially self-damaging behaviours, that you are challenged with emotions, are labile in mood, experience intense anger, find it difficult to manage, and do not have a strong sense of identity.

33      She expressed the view that, in the setting of the reports you had heard about Mia’s welfare and what has been agreed to be your "delusional" beliefs about Mia’s welfare, your consequent distress and inability to cope appropriately with your distress because of your “mental health problems" seem to have contributed to your offending behaviour.

34      It was made clear by your counsel that she was not seeking to activate the principles in Verdins case beyond Limbs 5 and 6, but rather this material was adduced to enable me to better understand the setting in which you offended and the risks associated with further offending, including the potential risks to Mia’s welfare.

35      Ms Lechner specifically addressed the questions of remorse and re-offending in her additional report.  She thought you were developing insight into your conduct and that this was encouraging and that the risk of re-offending was low.

36      Dr Slayo noted a diagnosis in 2006 of borderline personality traits, with narcissistic traits, and a history of overdose in September 2005.  She did not consider your profile indicative of an acquired brain injury.  She thought a custodial sentence would be likely to have an adverse effect on your mental health and impair your prognosis.  If imprisoned, she thought you should be monitored and given access to psychological/psychiatric intervention.

37      As just noted, your counsel submitted that Limbs 5 and 6 of the Verdins principles were activated, namely that the sentence will weigh more heavily on you than a person in normal health, and that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
I accept this.

38      Dr Slayo thought you needed ongoing treatment for psychological symptoms and to learn effective coping strategies.  Drug and alcohol counselling was strongly recommended.  It would also be helpful if you could obtain work.

39      Dr Redman is currently treating you.  Ms Lechner strongly recommended that you remain engaged with such treatment indefinitely.  Your counsel relied on this treatment as an important measure in addressing the risk of re-offending.

40      You saw another psychologist during 2011, prior to seeing Dr Redman.

41      Evidence of remorse is limited.  Ms Lechner noted that you regret your actions.  I accept Ms Lechner’s opinion that remorse is often a “developing emotional state”, fostered by appropriate counselling.  Ms Trumble relied upon your eagerness to engage in psychological, as well as substance abuse treatment as indicative of your insight into your mental health problems and willingness to address them.  I think this is fair.

42      The risk of re-offending is real.  I accept, as Ms Holmes argued, we cannot be certain that you will not re-offend, putting Mia’s welfare at risk, but I think
Ms Lechner is correct and that the risk is relatively low.  

43      Mr Robinson from the Salvation Army wrote that you engaged in the Positive Lifestyle Program on 3 March 2015.  He said you engaged well and at that stage were benefitting from the program.

44      You are receiving drug and alcohol treatment with Gippsland Southern Health Services and have reduced your cannabis intake.

45      Ms Trumble noted that your actions have put you at a considerable disadvantage in obtaining access to your children generally.  Your credibility with DHS and the courts determining custody and access is gone, submitted Ms Trumble.  Accordingly, you have done damage to yourself or suffered punishment in regard to the things most important to you.  On the other hand, Mr Trumble noted the steps that are being taken to give you access to your son and argued that to frustrate this access by imposing imprisonment would be very deleterious to your stability.

46      It is now over four years since the offending.  It took until December 2012 before you were offered the opportunity to be interviewed.  You declined but the delay was too long.  You were not charged until May 2013, over two years since the offending.  A further two years has now passed.

47      During submissions, Ms Trumble relied heavily on delay, emphasising that there had been no subsequent offending.  

48      This submission was one of the points of contention at the conclusion of the first hearing day.  Whilst it is correct to say that there has been no subsequent charges, there was an incident in December 2011 when you took Mia from your sister’s care, when Mr Lowe had left Mia, by agreement, to facilitate family contact.  You “disappeared with the child” for some days.  During this period there was a public appeal and serious concerns for the child’s safety.

49      Ms Trumble responded to this event by highlighting that, whilst this removal of Mia constitutes unlawful, discreditable and concerning conduct concerning Mia, the passage of time since it occurred is still considerable.

50      The prosecution relies on this removal of Mia in December 2011 as relevant to your rehabilitation prospects, your remorse and victim impact.

51      It was conceded that your offending is a serious example of the crime of attempting to pervert the course of justice, directly involving court processes, and going to the “very foundation of our justice system”.  Indeed, Ms Trumble stated that yours is a case where potentially the objective seriousness of the offending calls for an immediate custodial sentence, however, she argued, given the matters personal to you, I should consider release on a community correction order, or alternatively, if only imprisonment was appropriate, release you forthwith on a recognisance with conditions to undergo substance abuse and psychological counselling.

52      The prosecution submitted that only immediate imprisonment was appropriate.  This was principally because of the serious nature of the offending.  It involved court processes designed to protect children and your child in particular.  It involved more than one action on your part.  It was well planned over weeks.  You do have a prior criminal history.  Your conduct had harmful consequences and carried the risk of Mia being returned to you in circumstances where she had previously injured, the very reason she was not living with you.  The prosecution emphasised the fact that Mia had been harmed whilst in your care, your admission of hitting her, although it was not alleged that you caused the admitted injuries, and the presence of legitimate concerns about your ability to care for Mia, all increased the gravity of the offending.

53      As I followed the prosecution submissions, it was not being suggested that a lengthy period of immediate custody was required, but rather some period of immediate custody was required to reflect, in particular, the serious nature of the offending and to meet the needs of specific and general deterrence.

54      The defence argued that all sentencing objectives can be met by the imposition of a community corrections order.  As a particular of that submission, Ms Trumble submitted that protection of the community, as
I followed, including your daughter, is best addressed by allowing you to continue your treatment in the community with appropriate supports.  In her outline of written submissions, Ms Trumble specifically addressed the matters identified in s.16A Crimes Act 1914, to which I must have regard.

55      It will be obvious from discussion during the plea that I have found your case very difficult.  You are a troubled person and have found life challenging.  The offending is clearly serious and concerning, despite the fact that Mia was never released into your custody, and your offending quickly detected.  The delay in processing your case is regrettable, however, it has provided you with the opportunity to demonstrate your rehabilitative potential, despite your conduct in December 2011.  I accept and share Ms Lechner’s concerns about the risk of suicide if you are imprisoned.  Any reservations I might have had concerning Ms Lechner’s opinions, or the basis for them, were resolved after reading the additional report and I accept her opinions.

56      In my view only imprisonment is appropriate, but although the issue may be finely balanced, in the end I consider immediate imprisonment is not required.

57      You will be convicted and sentenced to 16 months imprisonment.  The sentence is to begin today and you are to be released forthwith upon entering a recognisance in the sum of $1,000 to be of good behaviour for two years.

58      As conditions of your release, you are to continue to seek and undergo psychological treatment from Redman and Associates, or nominee of that practice, and you are to continue to seek and undergo drug and alcohol treatment from Gippsland Southern Health Services, or nominee.

59      Had you not pleaded guilty, I expect I would have sentenced you to about two years' imprisonment and required you to serve about eight months in prison before being released on recognisance.

60      COUNSEL:  As Your Honour pleases.

61      MS HOLMES:  Your Honour, I have the recognizance release orders here.  My instructor just will fill in the conditions with respect to the psychological treatment.

62      HIS HONOUR:  Thank you for that, Ms Holmes. 

63      MS HOLMES:  And the drug and alcohol treatment.

64      HIS HONOUR:  Did you get note of what I said about that?  Did you get a note of what I said about the conditions?

65      MS HOLMES:  I have written it down.  They have got "to continue to seek and undergo psychological treatment by Redman and Associates and/or nominee."

66      HIS HONOUR:  Yes.

67      MS HOLMES:  "And to continue alcohol and drug treatment with
Gippsland" - - -

68      HIS HONOUR:  Gippsland Southern Health.

69      MS HOLMES:  - - - "Southern Health and/or nominee."

70      HIS HONOUR:  Thank you, that is it.  "Southern Health Services" it is. 

71      MS HOLMES:  Was it two years' good behaviour, or for the duration of the order, Your Honour?  Two years', good, I just wanted to check that.

72      HIS HONOUR:  It is the same, isn't it?  When you say "for the duration of the order".

73      MS HOLMES:  I think it was a 16 month RRO.

74      HIS HONOUR:  No, no, it's for - it is to be of good behaviour for two years.

75      MS HOLMES:  Sorry - 16 months', right.  16 months', sorry, imprisonment, released forthwith with a condition to be of good behaviour for two years?

76      HIS HONOUR:  Correct.

77      MS HOLMES:  Thank you.  I just needed to clarify that, Your Honour, thanks.

78      HIS HONOUR:  Do I need to sign this before the recognizance is entered, or after?  I think it is after, isn't it?

79      MS HOLMES:  It doesn't matter, I believe, Your Honour. 

80      HIS HONOUR:  We will have Ms Heart - you can come out of the dock,
Ms Heart.  Sit behind your counsel, Ms Trumble, and she will assist you with the signing of - - -

81      MS HOLMES:  I think - probably better after, because she's accepted the condition.

82      HIS HONOUR:  After.  Exactly.  Exactly.  Second page, Ms Trumble.

83      MS HOLMES:  Your Honour, just - the provisions require that the conditions and the ramifications for any breach are explained, and I'm sure Ms Trumble has done that, but I - - -

84      HIS HONOUR:  Well I just saw - I was conscious of that and I just saw
Ms Trumble explaining them to Ms Heart - - -

85      MS HOLMES:  Yes.

86      HIS HONOUR:  - - - in some detail, as she was getting her to sign the document.  I would simply reinforce that these are - this order is intended,
Ms Heart, to give you an opportunity to avoid immediately imprisonment, but you should understand that should you not comply with order, particularly not comply with the order by re-offending, you can expect to go to gaol.  Is that sufficient?

87      MS HOLMES:  If Your Honour pleases.  Yes.

88      HIS HONOUR:  All right, well I have signed that and - all right, is that the lot?

89      MS HOLMES:  Yes, Your Honour.

90      HIS HONOUR:  Thank you both for your help, really.  I have indicated, I found this difficult and I did, so I will leave the Bench.

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