DPP v Soderman [2022] VCC 81

4 You were 28 years of age at the time of the offending.

5 You were in a relationship with Bianca Johnson[1] for a number of years before you separated approximately two years prior to the offending. You have one child together, Alexander[2].

6 On 21 December 2016, a family violence intervention order was granted, naming Ms Johnson as the protected person and you as the respondent.

7 On 4 July 2017 you reported contraventions of the family violence intervention order to police. You were subsequently arrested, charged and remanded in custody.

8 On 21 July 2017, you were in custody at the Melbourne Assessment Prison in relation to the alleged contraventions reported by Ms Johnson when you made two telephone calls to your friend Damien Maher.

9 During these phone calls, you and Mr Maher discussed a defence to your contraventions of the family violence intervention order, namely that Mr Maher made the phone calls to Ms Johnson, not you, and that the reason for the calls was that Mr Maher was contacting Ms Johnson looking for you. It was then discussed that you would deny the allegations as Mr Maher had contacted Ms Johnson using a tablet device and you had been heard yelling in the background.

10 At 9.18 am, you made a call to Mr Maher's telephone number, using a prison phone. This phone call was recorded, and you and Mr Maher had the following conversation:

Mr Maher: Yeah. What do you want me to say? What do you...

You: Well, I need her to go to the - basically go to the cop shop and say that she's fucking making up lies, man.

Mr Maher: Yeah, well, they - they rand me and they asked if I gave you permission to use my phone. When I said - I said, "Nuh, it was me using the phone." And he - and he's like, "You'll be charged with harassment." I go, "Cool." And I haven't heard from him since, like, a week ago. So fuckin'... they can't... you know?

You: I dunno bro, I dunno. I - I don't wanna get locked up for fuckin' a year.

You: Cause she needs - she needs to help me, otherwise I'm not getting out. I'm gunna be doing 12 months or something, six months at least, and - - -

You: Yeah. Basically you've gotta get Bianca to go down to the police station and say that she was making up lies just to get me in trouble.

Mr Maher: Yeah, yeah. Well, what I said is how he heard your voice and that and I've gone, "I - I was ringing," like to, like, "I was ringing Bianca's phone looking for you." And then fuckin' I've gone, "When you spoke to Josh, that was me fuckin' ringing the number and then we heard some dude on the phone and - and so Josh has yelled out, 'Fuckin' who the fuck are you?" and the copper goes, "You're not by that," I go, "Yeah." So fuckin' - so, you know, I said - I said, "I - I - I was using the tablet," cause I go, "it's not a phone, it's a tablet. And I was using it and the only time you heard Josh was when - when she - you know, we heard - heard you on the phone."

Mr Maher: You know what I mean, take your time, you just gotta - just deny using the phone cause I said I've used it, so - - -

Mr Maher: Yeah, basically... it doesn't matter, you know what I mean? Like, I can - no, right, I'll - I'll just say I was using the phone looking for you.

You: Mm, yeah, I know fuckin' - I'll go down there, I'll - I'll go. Do you want to ring me back in - in a few hours or - or - - -

You: Yeah, you should - you should talk to that bitch.

You: And tell her to go down and do an impact statement but then in - on her impact statement saying how she just doesn't want me to go to gaol and shit.

Mr Maher: Yeah. Well, I'll send her a text today. I'll fuckin' - yeah, cause I haven't spoken to... and that.

11 At 3.22 pm, you made a second phone call using a prison phone to Mr Maher. You had the following conversation, which was recorded:

Mr Maher: Yeah, yeah, I - I went - I went down there.

Mr Maher: And - and so she's put in the request form anyway, cause they fuckin' - yeah. But I said that you wanted to talk to her and that. Yeah, they wouldn't let me talk to her if you weren't there or something.

Mr Maher: Yeah. Well, she's - she's gunna write a statement to help you and fuckin' talk to the police and that.

You: She should go down there and say that she's just lying, straight up cop the - cop a fuckin' charge for fuckin' - for fuckin' - - -

You: - - - lying to the police or for making a false statement.

You: She's got kids and she will fuckin' get away with it.

Mr Maher: Yeah, well, I - I - I said to her - you've gotta talk to your lawyer, you've gotta give 'em permission for me to talk to 'em.

Mr Maher: We're gunna type it up and she fuckin' - yeah. And then I - I'll cause - cause the jacks rang me and - fuckin' - I said it was me making the phone calls and that. And they haven't called me in for an interview but I'm gunna go in there and fuckin' give an interview, like, yeah, just to say it was me using the phone and the only reason he spoke to you is because it's a tablet, not a phone, and she finally, like, answered when it... I was here and then you - and then we were like, "Who the fuck's that?" and that's why you heard the voice...

You: Yeah, well, she needs - she needs to do something, man, cause I'm not fucking going to gaol for making fuckin' phone calls, mate. It's the lowest of the low, you know what I mean?

You: Yeah, I'll - I'll just, yeah, I don't know. Just - well, make sure she goes down the cop shop and does an impact statement but on her impact statement it fuckin' says she doesn't want me in gaol and that she's making up lies, made, you know. Cause that's - - -

You: - - - the only way I'm gunna get off this shit is if she makes - if she's made a false statement and that - - -

You: All right, yeah. Text Bianca, see if she's - - -

You: Yeah, you too brother. And thanks for - thanks for everything, mate. You, like, you've fuckin' set me up good, bro.

12 On 25 July 2017 Allan McCrae, an Intelligence Analyst at the Melbourne Assessment Prison reported the 9.18 am phone call to the police informant, Senior Constable Alexandria Baldock at the Horsham Police Station.

13 On 26 July 2017 Senior Constable Baldock contacted Ms Johnson by phone and

Ms Johnson stated that she had not been contacted by Mr Maher or any other person on your behalf.

14 On 30 July 2017, Senior Constable Baldock phoned Mr Maher and asked him about the phone call between you and him on 21 July 2017.

Mr Maher said that he had not contacted Ms Johnson and did not have the means to contact her, as he did not know her phone number or address.

15 On 2 August 2017, you were in custody at the Horsham Police Station for an attendance at Court for the alleged intervention order breaches. Senior Constable Baldock had a brief conversation with you in the presence of Police Custody Officers, Jack Rentsch and Lia Landrigan. Senior Constable Baldock asked you whether you wished to be interviewed in relation to the alleged attempt to pervert the course of justice. You exercised your right not to comment on the allegations.

16 On 9 August 2017 Senior Constable Baldock obtained a disc containing the recording of the calls made between you and Mr Maher on 21 July 2017. Upon listening to the recordings, Senior Constable Baldock became aware of the 3.22 pm phone call in which Mr Maher stated he had contacted Ms Johnson on your behalf, in contravention of the family violence intervention order, which prohibited you contacting Ms Johnson directly or indirectly.

17 On 9 August 2017, you were convicted of persistently contravening the family violence intervention order at the Horsham Magistrates' Court.

18 Attempt to pervert the course of justice is an inherently serious offence which is reflected in the maximum penalty of 25 years imprisonment. It is an act that is designed to interfere with the administration of justice, which depends upon the system operating so that people who commit crimes are held to account. Those that interfere with that process commit a disservice to the community.[3] In this case, this was an attempt by you to have your ex-partner change a statement she made to police in relation to a family violence intervention order. However, your conduct was not accompanied by threats or violence. It can therefore be contrasted with more serious examples that may involve serious threats of violence or actual contact with the victim.

19 It was submitted on your behalf that in the circumstances your offending may be considered to be towards the lower end of seriousness. While attempting to pervert the course of justice is an inherently serious offence, I accept that in all the circumstances your offending falls towards the lower end.

20 You are currently 33 years of age. You grew up in Melbourne until the age of eight with your parents, two older brothers and one younger brother. You then moved to regional Victoria. Your parents enforced strict discipline with you including physical punishment for what they perceived to be poor behaviour by you. You struggled at school academically and your literacy skills are limited. You engaged in antisocial behaviour and you were expelled at Year 8.

21 At around the age of 15 you began a roof tiling apprenticeship which you ultimately completed. In your teen years you began using marijuana and ecstasy, progressing to amphetamines and prescription drugs from the age of 17. Drugs have been a long term issue for you.

22 You worked as a roof tiler for a number of years and ended up running your own roof tiling business successfully. You lost your licence as a result of a driving offence and this impacted your ability to work. You are currently unemployed, in receipt of the Newstart Centrelink payment but hope to gain employment in the near future.

23 You served approximately two months imprisonment in early 2021 in relation to contravention of a family violence intervention order where Ms Johnson is the respondent. In the lead up to being remanded in relation to other alleged offending in October 2021, you were living at no fixed address and were homeless.

24 You are now estranged from Ms Johnson. You have had telephone contact with your son, who is now nine years of age and living in Horsham with Ms Johnson. You have not been able to see your son for some time.

25 You come before the Court with a criminal history which commenced when you were around 20 years of age. You have relevant prior history including having completed a community based order and served a period of three months imprisonment as a result of family violence offending.

26 You were remanded in custody in October last year on a recent pending matter. You were transferred from Port Phillip Prison to Melbourne Assessment Prison to receive psychiatric treatment after a decline in your mental state. You have been prescribed antipsychotic and antidepressant medication and you have been working as a billet.

27 Dr Elena Bhattacharya, Consultant Forensic Psychiatrist, prepared a psychiatric report dated 19 January 2022. Dr Bhattacharya outlines your personal history into the findings of a mental state examination and interview of you on

21 December 2021. In Dr Bhattacharya's view, you presented as psychotic during the interview and were experiencing grandiose, persecutory and paranoid delusions. For example, you stated that you were seeing magic, receiving messages from the television and radio and being targeted for having special abilities.

28 Dr Bhattacharya also noted that you had been diagnosed with First Episode Psychosis by Dr Sam Pang, Consultant Psychiatrist at Melbourne Assessment Prison. Dr Bhattacharya opines that a custodial disposition would place additional stress on you. Dr Bhattacharya is also of the view that support in the community, in particular housing assistance, would benefit you and your mental health. You have been referred to Sunshine Adult Mental Health Service and Forensicare's Community Integration Program for follow up in the community upon your release from custody. You also plan to live with a friend in Melton on release.

29 Mr Leslie who appeared on your behalf at the initial plea date highlighted a number of matters in mitigation.

30 Turning first to your plea of guilty. You pleaded guilty to this offending in

June 2021. Your plea cannot be considered an early plea however your plea of guilty has significant utilitarian benefit, sparing the time and expense of a jury trial and saving witnesses from having to give evidence. The plea carries additional weight, which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[4]

31 Delay is of relevance in this case. The offending occurred some four and a half years ago in July 2017 and the matter was committed to the Horsham County Court in September 2018. The delays have been caused largely as a result of this matter not being reached in the circuit list. The COVID-19 pandemic has also contributed further to the delay. Having managed this case through a number of hearings, it is clear from discussions I have had with you directly, that this case has caused you significant anxiety as it has progressed through the system. I take this into account.

32 At the conclusion of the plea on 28 June 2021, Mr Leslie submitted that sentencing ought be deferred pursuant to s 83A of the Sentencing Act 1991 to allow you to establish stable accommodation and employment and demonstrate that you are on the path to rehabilitation. I deferred sentence however, during the period of deferral you were remanded in custody in relation to other matters and your lawyers were unable to obtain further instructions or plea material. On

12 November 2021, I ordered that a pre-sentence psychiatric report be prepared as it became apparent that your mental state had declined. I have referred to the report above. This process only added further delay to the conclusion of this matter, however it provided me with important information that was unable to be obtained on previous hearings.

33 You have now received psychiatric treatment and are compliant with your medication in custody. Your mental state has stabilised to a degree and there is a plan for how you will access mental health services in the community. However, you conveyed to Dr Bhattacharya that you intend to continue using drugs upon your release. Further you spoke of the victim in this matter, your ex-partner, in derogatory terms. In the circumstances, while I accept that you require continued assistance in relation to your mental health, your prospects of rehabilitation cannot be assessed positively.

34 General deterrence remains a paramount sentencing consideration. A message must be conveyed that conduct such as yours will not be tolerated when it is designed to interfere with the administration of justice.

35 You have been on remand since October last year in relation to another matter, and I was told you have no presentence detention for the purposes of a s 18 declaration. Nonetheless, I take into account the period you have been in custody while awaiting the resolution of this matter. Ms Flocke who appeared at the further plea, submitted that a short term of imprisonment or a substantial fine are dispositions that are within range. Mr O'Doherty who appeared on behalf of the Director of Public Prosecutions submitted that while consideration may have been given to alternative dispositions at the time of the deferral of sentence as a result of the change in circumstances, an immediate term of imprisonment is the only appropriate disposition.

36 In my view in all the circumstances, an immediate term of imprisonment is the most appropriate disposition.

38 Joshua Soderman, on Charge 1, attempting to pervert the course of justice, you are convicted and sentenced to six months' imprisonment.

39 Pursuant to s 18 of the Sentencing Act 1991, I declare that six days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

40 Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to 12 months imprisonment.

[3] The Queen v Healy (Victorian Court of Appeal, Charles JA, 4 August 1997).

[4] Worboyes v The Queen [2021] VSCA 169 at [39].