DPP v Reilly [2023] VCC 1114

(a) Ms Johnson asked Ms Sellar to appear at court the following day as summonsed; > > (b) Ms Johnson stated:

Ms Johnson: - - - go in there and you're - obviously you'll go into the police station, yeah, and you'll sit in front of the computer.

Ms Johnson: Can you tell - like, tell the - the cops don't sit in there with you. You sit in the room by yourself. 'Cause I've been there, I've don't that.

Ms Johnson: Can you tell them that you tried to retract it and the police wouldn't let you?

Ms Johnson: An can you, like, let them know that I didn't threaten you, that's just the way you felt?

(c) Apologises for assaulting Ms Sellar previously;

(d) Repeats her request that Ms Sellar retract her complaint; and

(e) The pair discuss at some length the circumstances leading up to Ms Sellar's complaint against Mr Maddern.

1. Later that day, at 6.14pm, Ms Johnson spoke with you again. By this stage, you were quite substance affected. Ms Sellar was still with you, and she was handed the phone. Ms Johnson and Ms Sellar discussed your welfare, and the circumstances of their previous conflict.
2. It is the prosecution's case that your act of facilitating a phone conversation between Ms Sellar and Ms Johnson, with the foreknowledge of Ms Johnson's intent to have Ms Sellar change here evidence, amounted to either:

(a) An attempt to pervert the course of justice; or > > (b) An intentional act to assist Ms Johnson attempt to pervert the course of justice; or > > (c) An act further to an agreement formed with Ms Johnson, as evidenced by the Arunta calls, to attempt to pervert the course of justice.

1. Ms Reilly, the charge you have pleaded guilty to is an inherently serious one. It is offending that does strike at the heart of the criminal justice system and I note as an aggravating feature of your offending that at the time you were on a Community Corrections Order (CCO). It appears that you had been released from a short period in custody and then placed on an order.
2. In the assessment of the gravity of your offending I accept that there are factors that place your offending in the lower category of seriousness. First, you were clearly not the principal offender in this matter. Your offending was relatively confined and in the main involved facilitating two telephone calls between Ms Johnson and Ms Sellar by handing the phone to Ms Sellar. All calls were recorded through Arunta, which would have been apparent to you at the time. Your offending was unsophisticated and easily detected. I accept you did not receive any benefit yourself. Ms Sellar was not threatened or subjected to violence. While you facilitated the calls, I accept that there is no evidence that you were aware of the precise nature of the conversation that took place between Ms Sellar and Ms Johnson. There is also nothing to suggest that the calls were pre-arranged or pre-planned.
3. Your conduct and involvement in this offending was obviously unacceptable. I note that during your recent assessment with corrections you had enough insight, Ms Reilly, to acknowledge that your actions were, to use your word, 'terrible' and the impact on Ms Sellar, 'horrible'.

1. Your matter resolved at a sentence indication on 20 January 2023.
2. Although your plea is not one entered at the earliest opportunity it is still a plea that entitles you to an important discount in sentence. You have demonstrated a willingness to facilitate the course of justice. Your plea is an acceptance of responsibility and, I accept, remorse on your part. Your plea is also of significant utilitarian value and attracts a greater amelioration or reduction in sentence in accordance with what we refer to as the Worboyes[1] principles.

1. Your personal circumstances, Ms Reilly, were outlined by your counsel, Mr Ranjit, and are canvassed in the recent psychological report of Mr Warren Simmons.
2. Briefly, you are 32 years of age now, born and raised in Cranbourne.
3. You were raised by your father, having lost all contact with your mother from when you were only a baby. You have no memories of her and have had no contact with her.
4. You have one older brother with whom you have regular contact and you have his support within the community.
5. Your father worked as a labourer to support the family. He was hardworking and worked long hours.
6. Growing up you did struggle because of your fathers emotional absence, strict discipline and also the frequent moves of your family. You spent a lot of time with your grandmother and you were close to her, and she passed away in 2007. Your father presently looks after your two children, who are aged now 5 and 2, after the Department intervened.
7. You attended Cranbourne Secondary College and completed Year 9.
8. After leaving school you pursued a career as a hairdresser for a short period before attending the Sage Institute of Child Care and completing your qualifications to work in the childcare industry. At the same time, you were employed in various retail stores as a sales assistant and manager. After obtaining your qualifications in childcare you worked in the industry for several years until you had your first child in 2016 and stopped working. You have not returned to paid employment since this time.
9. In 2015 you met your first partner and you were introduced to methylamphetamine. It was a violent relationship. You have previously reported a number of violent incidents to the police and there is a current active family violence order in place with full conditions protecting you.
10. The relationship ended in 2019, the Department were involved and removed your daughter from your care as it was determined that you could not fully protect her. This was a catalyst for your increase in substance use and you began using methylamphetamine and GHB regularly.
11. In 2020 you met your second partner and had your second child. You also suffered and endured regular domestic violence in this relationship which has since ended.
12. You have no contact with either of your previous partners and they are apparently both in prison serving sentences. As I have already noted, your children currently reside with your father in the Rosebud area. You are allowed to visit them subject to your father being present. You see them regularly I was told, and maintain a positive relationship with your father. Your ultimate goal is to try and get through your court matters, prove yourself to the Department and hopefully have your children returned to you. You appreciate, I was told, that change will not be achieved immediately and that there is a process involved in this and on involving hard work.
13. In terms of your drug use, at the age of 17 years, you were introduced to cannabis and continued using into your early 20s. You then, as I have already noted, commenced using methamphetamines. You started smoking the drug about once a week although within afew months it increased to daily use. It was a drug, you told Mr Simmons, that was particularly useful in numbing your feelings when you were the victim of domestic violence. In 2020 you commenced ingesting GHB after being introduced to the drug by your partner. You have found being abstinent from drugs particularly difficult and challenging.
14. Since being bailed for the offending, you spent approximately four months at the Cottage Residential Rehabilitation Centre which I was told was a program that is very similar to Odyssey House. It is a 24‑hour care program and you resided there for that period of time before moving back to the Rosebud area. As discussed with counsel today, I do take this matter into account in accordance with the Akoka[2] principles. After your discharge, you were abstinent for a period but relapsed into drug use, identifying the trigger as talking to a previous partner which made you feel particularly low. Since moving back to Rosebud you have been trying to focus on your mental health and drug treatment**.**
15. You currently reside with your ex‑partner's parents in Rosebud. You are in receipt of Centrelink and as I have already noted, you spend time with your children.
16. On your behalf it is submitted that as a result of the domestic violence you have endured over the years you have been diagnosed with post‑traumatic stress disorder and long‑standing substance abuse. You were also apparently diagnosed in 2020 with borderline personality disorder. You are currently prescribed mood stabilising medication and Prazosin.
17. The psychological report of Mr Simmons was obtained and assessed your mental health. In summary, he outlined your personal circumstances including the extensive domestic violence that you have endured in the past, and opined that you present with symptoms of post‑traumatic stress disorder associated with your previous relationships. He considered the evidence for a diagnosis of borderline personality disorder 'was less robust'. As submitted by your counsel Mr Ranjit, the principles of Verdins[3] are not relied upon but obviously I take into account the contents of Mr Simmon's report and your personal background. This includes the struggles that you have had in relationships and your exposure to severe domestic violence when I take into account all of your circumstances.

1. Your prior criminal history commences from 2016 after you started using methylamphetamine. It comprises mainly of dishonesty, drug and driving matters and I accept it is reflective of your drug abuse. You have previously been sentenced to CCO's and have breached them.
2. I note you have an outstanding matter listed in the Magistrates' Court for breach of an order imposed subsequent to this offending and also I note what I was told about the possession of drugs.
3. Your prior history, Ms Reilly, is relevant to my assessment of your rehabilitative prospects and the weight to be given to specific deterrence and community protection.

1. In all the circumstances, as far as your prospects for rehabilitation are concerned, I consider that they very much depend on you remaining abstinent from drugs. You are still a relatively young woman. You have a history of education and also of clearly being able to work and maintain employment. You have the motivation of your young children and you maintain regular contact with them presently. While your father wants you understandably to 'get your act together', he remains supportive of you. You are also supported by your child's grandmother, Ms Connor, who I note has attended court previously with you.
2. As Mr Simmons observes, 'there is no doubt that [you are] attempting to make some changes in [your] life' but you do admit to struggling with this. Mr Simmons recommends drug and alcohol counselling and a referral to a psychiatrist to both review your medication and other diagnoses. It seems clear to me that you have struggled in the past and that you do continue to struggle. I note your history of poor compliance with corrections, as outlined in their assessment report. I consider that you are someone who needs intervention and assistance to support you in remaining abstinent and improving your mental health and circumstances.
3. During your recent assessment with MHARS it was noted that you present as an emotionally vulnerable woman experiencing dysphoria and anxiety secondary to multiple psychological stressors. It was considered that you would benefit from learning psychological skills to self‑soothe and to self‑manage your mood, emotions and thoughts.

1. You served, Ms Reilly, 58 days on remand during the pandemic. I accept that the conditions in custody were more onerous for you and included a 14‑day period in isolation, limited family contact, random lockdowns and limited programs.

1. I have also had regard to the sentencing principle of parity in this case. The principle is an aspect of equal justice. It requires that like should be treated alike, but that due allowance must be made for relevant differences between co‑offenders.
2. On 14 October 2022 Ms Johnson was sentenced in this Court for a number of charges, the primary ones being two counts of attempt to pervert the course of justice and common law assault. She was sentenced to a period of some 675 days' imprisonment, followed by a 12‑month Community Corrections Order with conditions.
3. I consider that there are important differences between your case and that of Ms Johnson that must be reflected in the sentences imposed and justify a variation in outcomes. She was clearly the primary and more culpable offender. While you have one charge in common she also faced a further charge of attempting to pervert the course of justice; and then there are the matters personal to you and the recent efforts that you have been making in the community.

1. The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
2. I also take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant. Further I have considered the general sentencing landscape for attempting to pervert the course of justice. The cases have been of assistance but of course each case must turn on its own facts and I note that this particular offence can occur in many and varied ways.
3. Both Counsel agreed that a combination sentence was just and appropriate in your case. Ultimately, it is a matter for the Court as to whether you have served sufficient time in custody to reflect the denunciatory and deterrent aspects of sentencing. Synthesising all relevant matters, I consider, as previously indicated, that a combined sentence, without requiring you to return to custody, is just and appropriate in your case. A CCO is punitive and restrictive and will best promote and foster your rehabilitation, which ultimately best serves the community.
4. I had you assessed, Ms Reilly, for an order and, as I foreshadowed as a possibility at the time of the indication, particularly given your prior history, you were assessed as unsuitable. That is understandable given your poor history of compliance. I have however, ultimately determined that a CCO is just and appropriate in your case for the reasons I have already canvassed. But Ms Reilly, may I be clear that it is up to you to comply with this order. You must undertake the order and comply with its conditions otherwise you will be in breach of it and risk punishment for the breach and the possibility of further prison time. Okay, do you understand?
5. OFFENDER: Yes, I do.
6. HER HONOUR: All right. I take into account material tendered and the submissions made by both counsel today and at the earlier sentence indication hearing.

1. On the one charge before the court, you are convicted and sentenced to - sorry, 58 days is it gentlemen?
2. MR RANJIT: Yes, Your Honour, 58.
3. HER HONOUR: Or 56? I have got a note of both.
4. MR RANJIT: 58 days.
5. HER HONOUR: 58, thank you.
6. MR RANJIT: Yes, Your Honour, I have got 58 by my calculations.
7. HER HONOUR: Thank you. 58 days' imprisonment and a Community Corrections Order of 14 months with the following conditions: (a), 100 hours of community work but, Ms Reilly, I propose to offset those hours, so all of them, against treatment. In other words, if you engage in treatment, it will go towards your community work. Do you understand?
8. OFFENDER: Okay, yeah.
9. HER HONOUR: Okay. (b), treatment for mental health;
10. OFFENDER: Yeah.
11. HER HONOUR: - - - (c), drug and alcohol; (d), there will be supervision; and (e), I am also going to require you, Ms Reilly to attend before me for judicial monitoring, okay? That may not continue for the duration of your order but I do want you to attend at least initially so I can see how you are going, okay?
12. OFFENDER: Yes, yeah.
13. HER HONOUR: They are the conditions. There are also core conditions to an order which you would understand because you have been on them before. The core conditions include I am required to indicate, given this is a remote hearing, they do include that you attend to Corrections and the Corrections office is Rosebud, thank you, Rosebud Community Corrections Service. I take it that you know where that is?
14. OFFENDER: Yes, I do.
15. HER HONOUR: ... The other core conditions, so these are conditions that attach to every Community Corrections Order:

(a) You must report to and receive visits from Corrections during the period.

(b) You must notify them of a change of address or employment within two clear working days.

(c) You must not leave Victoria except with their permission; and

1. Okay? So in addition to the conditions I have imposed, they are the basic ones that attach to each order.
2. OFFENDER: M'hmm.
3. HER HONOUR: Now, do you understand those conditions?
4. OFFENDER: Yes, I do.
5. HER HONOUR: Okay, now in terms of the potential for breach which I have already referred to, you will breach the order if during the 14 months that commenced today, you commit an offence punishable by imprisonment or fail to comply with the conditions. Okay?
6. OFFENDER: I understand.
7. HER HONOUR: If you do that, then you come back before the court for a breach, you can be re‑sentenced on the original charges and you would be at risk of a term of imprisonment. Okay, do you understand that?
8. OFFENDER: Yes.
9. HER HONOUR: All right, understanding the conditions and the consequences of a breach, do you consent to the order?
10. OFFENDER: Yes, I do.
11. HER HONOUR: Okay, all right, thank you. Just one moment. Yes, judicial monitoring date please, six weeks?
12. MR RANJIT: 26 April (indistinct words).
13. HER HONOUR: 26 April.
14. MR RANJIT: It's a Wednesday at 9.15am.
15. HER HONOUR: A Wednesday at 9.15am, okay.
16. MR RANJIT: Also, she needs to report by the 15th which I think is - - -
17. ASSOCIATE: Next Wednesday.
18. MR RANJIT: Wednesday (indistinct words).
19. HER HONOUR: By - because of the public holiday, the 15th.
20. ASSOCIATE: (Indistinct words) accounts for the long weekend (indistinct words).
21. HER HONOUR: Okay, so by the Wednesday. All right, thank you. So two things, Ms Reilly. In terms of the reporting, you have heard my suggestion that you contact them today, okay? I think that is the best way to approach it but strictly, because of the public holiday, you have until Wednesday the 15th, okay? So two days but the public holiday is not counted. Judicial monitoring, so when you appear before me by video link, okay, as you have today, 9.15am, 26 April.
22. OFFENDER: Yes.
23. HER HONOUR: So it is a while away but what will happen then is Corrections will give me a report and they will let me know how you are going. What I expect to see, Ms Reilly, is that you are making an effort, you are meaningfully engaging. It is not easy, I understand that but I expect to see that you are engaging with them, okay?
24. OFFENDER: Yeah, yeah.
25. HER HONOUR: All right. Counsel, was there anything further? There are no ancillary orders?
26. MR RANJIT: No, Your Honour.
27. HER HONOUR: No, okay. Just one moment. Your order, it will be signed remotely because of the nature of this hearing and it will be forwarded to all parties, okay?

[1] Worboyes v The Queen [2021] VSCA 169.

[2] Akoka v The Queen [2017[ VSCA 214.

[3] R v Verdins [2007] VSCA 102.