Shiryar v The Queen [2022] VSCA 96

2 On 3 September 2021, the judge sentenced him as follows:

Persistently contravening a family violence intervention order

4 years' imprisonment with a non-parole period of 3 years

3 The applicant now applies for leave to appeal on the ground of manifest excess.[3]

4 For the reasons that follow, leave to appeal will be refused.

5 At the time of the offending, the applicant was 29 years old and on remand, facing a series of separate charges to which he ultimately pleaded guilty: two charges of criminal damage, one charge of stalking, one charge of making a threat to kill, and two charges of committing an indictable offence while on bail.

6 Two of those charges are particularly relevant: the charge of stalking (the victim of which was the applicant's former partner, ES) and the charge of making a threat to kill (the object of which was ES's father). It is convenient to refer to the offences the subject of these charges as the 'initial offending'.

7 Just prior to the present offending, the applicant's months-long relationship with ES had come to an end. Shortly after that happened, the initial offending occurred, over a span of four days. On 18 October 2019, an interim family violence intervention order was made and served on the applicant. The order relevantly prohibited the applicant from contacting ES or having someone else contact her on his behalf. In the meantime, the applicant was charged with the initial offending and remanded in custody.

8 On 24 October 2019, while on remand, the applicant phoned an associate ('Agahi') and twice requested that he phone ES to ask that she and her father drop the charges against him.

9 Among other things, the applicant asked Agahi to tell ES that the applicant's ill mother had fainted when she learned he had been charged, and to warn ES that if his mother were to deteriorate or die, he would not forgive ES and her father.[4] In the first call, he told Agahi to tell ES:

Drop the charges. Let him go home. His parents are sick. My mum ... her kidney is failing ... if she dies do you reckon I'm gunna forgive youse for especially when I haven't done nothing to youse. All I did was help youse.

10 In the second call, the applicant asked Agahi to tell ES:

Look, don't do this, his mum is sick. When the mum found out she fainted. If anything happens to his mum he's not going to forgive you guys. This time he hasn't done anything to youse but you reckon he's gunna do time for nothing and then something happens to his mum he's not going to do anything? He doesn't care what happens after that.

11 The applicant also instructed Agahi to tell ES that if the charges were dropped, he would give her a car that had been the subject of a dispute between him and her family.

12 Shortly afterwards, Agahi contacted ES on one phone while he remained connected to the applicant on another phone. As instructed, he requested that ES and her father 'drop the charges', promising that if they did so, the applicant would 'give you everything back you want'.

13 These conversations constitute charge 1 - attempting to pervert the course of justice.

14 The next day, the applicant called Agahi, and asked him to contact ES again. Throughout the day, Agahi sent text messages and called ES at the applicant's request. Agahi attempted to reach ES by telephone at least six times, without success.

15 The next day, the applicant called his sister-in-law and directed her to telephone ES. She did so, enabling the applicant to speak directly to ES.

16 The applicant's repeated attempts, over three days, to contact ES through Agahi and his sister-in-law constituted charge 2 - persistent contravention of a family violence intervention order.

17 After describing the offending, the judge set out the applicant's extensive prior criminal history. In the preceding decade, there had been more than a dozen court appearances, in respect of around seventy offences. Relevantly, the applicant's prior criminal history included convictions for contravening, as well as persistently contravening, other family violence intervention orders. In addition, the applicant had previously breached bail, two community-based sentences, three community correction orders, and a suspended sentence.[5]

18 There were also subsequent convictions. Following the present offending, the applicant had been convicted of the charges for which he was remanded at the time of the present offending: that is, the 'initial offending' consisting of two charges of criminal damage, one charge of stalking, one charge of making a threat to kill, and two charges of committing an indictable offence while on bail. He had been sentenced to (and served) an aggregate term of 12 months' imprisonment while the present matters were pending.[6]

19 The judge considered these subsequent convictions relevant in a number of ways. First, the gravity of the charges in respect of which the applicant was attempting to pervert the course of justice (the charges of stalking and making a threat to kill) informed the gravity of the attempt to pervert the course of justice. Secondly, the judge attributed significance to the present offending occurring very shortly after the applicant had been remanded in custody. Thirdly, the judge considered that the subsequent convictions informed the assessment of the applicant's rehabilitative prospects, and the weight to be given to the sentencing principle of specific deterrence.[7]

20 The judge then set out the applicant's personal circumstances. The applicant came to Australia as an infant. He had struggled to maintain employment. In recent years, his marriage had broken down, he had lost contact with his daughter, and he experienced grief and depression following the premature death of his brother. He has a history of problematic drug use, and acknowledged ongoing mental health struggles and difficulties with anger management.[8]

21 For the plea hearing in respect of the initial offending, the applicant was assessed by a clinical psychologist, Ms Jackson. The judge referred to her report, in which she assessed the applicant as presenting with mild stress, anxiety and depression. She opined that the applicant's risk of re-offending would remain 'high' without professional intervention. She recommended a treatment program providing mental health support and addressing the applicant's destructive behaviours, anger management, and problem-solving strategies.[9]

22 For the plea hearing in respect of the present offending, the applicant was assessed by a second clinical psychologist, Mr Bilyk. He assessed the applicant as exhibiting features of 'Cluster B personality functioning' in the 'antisocial range', tending the applicant towards excessively emotional, reckless and impulsive responses. Like Ms Jackson, he recommended professional intervention addressing matters such as distress tolerance, conflict resolution, impulse control and practical problem solving. Mr Bilyk also opined that the applicant's 'personality vulnerabilities' would make his period in prison more difficult.[10]

23 The judge assessed the applicant's prospects of rehabilitation as 'at best fair but guarded'.[11]

24 The judge went on to take into account, in the applicant's favour, the following mitigatory factors:

(a) the applicant's early guilty plea and its heightened utilitarian value during the present pandemic;[12]

(b) the increased custodial burden because of:

_(i) the ongoing restrictions to visits and other prison programs during the ongoing pandemic;[13] and

(ii) the applicant's mental health difficulties, which enlivened the fifth limb of R v Verdins;[14]_

(c) the applicant's acceptance of overall responsibility for his offending (despite disputing certain details and being less than forthcoming about his drug use);[15]

(d) the applicant's apparent insight into his offending;[16]

(e) that the applicant has the support of his family, intends to undertake counselling to address some of his mental health issues, and has available to him employment and other community re-integration supports.[17]

25 The judge then turned to the gravity of the offending. He observed that the first charge of attempting to pervert the course of justice is intrinsically serious, as shown by the maximum penalty of 25 years' imprisonment.[18] The judge considered the offending constituting that charge to be 'relatively serious' and falling within the 'medium range'.[19] This was because the offending was premeditated, repeated and persistent, involved enlisting others, and employed veiled threats and inducements.[20] It involved a 'high level of moral culpability', including because the applicant was, as he admitted to Agahi, well aware that interfering with witnesses was wrong.[21]

26 As to the second charge, the judge characterised it as involving a 'lesser degree of seriousness' and falling with the 'lower range'.[22]

27 The judge considered general deterrence and denunciation to be important sentencing considerations in respect of family violence offending, and, by extension, attempts to avoid prosecution for family violence offending. Specific deterrence, just punishment, and community protection also assumed importance given the nature and gravity of the offending, and the applicant's considerable criminal history.[23]

28 The judge also considered the principle of totality, stating:

Totality considerations must also be considered and applied. There is a degree of overlap [between the initial and present offending]. And, you have lost the opportunity of seeking a modest degree of concurrency as between the sentence you received on 7 August 2020 and the sentence for the current offences since you have finished serving that sentence.[24]

29 As mentioned, there is a single proposed ground of appeal, which relates to the various sentences:

The total effective sentence, individual sentence imposed on charge 1 and non-parole period are manifestly excessive.

30 The applicant's submissions focussed on the base sentence of 2 years and

6 months' imprisonment for attempting to pervert the course of justice.

31 First, the applicant contended that the base sentence exceeded the available range for offending of this kind: that is, offending not involving violence or 'overt' threats or intimidation, and occurring over a single day.

32 The available range, it was said, could be perceived by reference to comparable cases, in which a sentence lower than the base sentence in the present case was imposed for the offence of attempting to pervert the course of justice.

33 In one such case, Zakkour v The Queen,[25] this Court in re-sentencing confirmed a sentence of 18 months for attempting to pervert the course of justice. The offender, while in custody, had telephoned two intermediaries and requested that they contact his former partner and ask her to withdraw a police statement she had made in respect of charges against him. This conduct also contravened a family violence intervention order. The offender pleaded guilty. In contrast to the present case, the attempt to pervert the course of justice did not involve any veiled threats.

34 In another case, Carter v The Queen,[26] this Court refused leave to appeal against a sentence of two years for attempting to pervert the course of justice. There the offender, who also pleaded guilty, had directly telephoned his former partner from custody, also in contravention of a family violence intervention order. He made some 13 calls over a period of weeks which involved both implicit and explicit threats of violence if his former partner did not retract a police statement.

35 Secondly, the applicant submitted that the available sentencing range was lower in this case because of the increased utilitarian value of a guilty plea during the pandemic, as recognised by this Court in R v Worboyes.[27] The judge recognised that the applicant was entitled to an enhanced discount for his guilty plea. But the applicant submitted that the base sentence, which was greater than the sentences imposed in Zakkour and Carter (prior to Worboyes), did not reflect the application of such a discount.

36 Finally, the applicant contended that, despite the judge's reference to the principle of totality, the sentence indicated that the principle was not given appropriate weight. Properly applied, and recognising the 'considerable overlap' between the initial offending and the present offending, it was said that the principle should have resulted in a lesser sentence.

37 The respondent contended that the base sentence fell within the available range. The judge acknowledged and took into account the applicable mitigatory factors and the principle of totality, but there were other relevant factors. In particular, the respondent pointed to:

(a) the judge's unchallenged finding that this was 'relatively serious' and 'medium-range' offending, in respect of an inherently serious offence; and

(b) the applicant's relevant criminal history, which was so extensive that it diminished his prospects of rehabilitation, elevated principles of deterrence, and effectively 'precluded leniency'.

38 Although it is an offence which captures a wide range of conduct, any attempt to pervert the course of justice is to be viewed seriously and denounced appropriately.[28] The maximum sentence is 25 years' imprisonment. An attempt to pervert the course of justice in respect of one's own serious offending, is, as the judge recognised, all the more serious.[29] In particular, an attempt to pervert the course of justice within a family violence context is always a grave matter. As this Court said in Baker (a pseudonym) v The Queen:

An attempt by a perpetrator of family violence to prevent a victim from seeking the full protection of the law and their physical and emotional safety is a very serious matter which calls for general deterrence and denunciation. While warranting distinct punishment, however, care must be taken not to punish the offender again for the offending which it was sought to conceal.[30]

39 Consistently with these observations, the judge rightly emphasised general deterrence and denunciation as important sentencing considerations in this case. He was also correct to place weight on specific deterrence and protection of the community. This was a serious case of attempting to pervert the course of justice, and the judge's finding that it was 'medium range' offending is not challenged. While the offending was brief in duration, it took place very soon after the interim family violence intervention order was made, in response to the initial offending which immediately preceded it. The attempt to pervert the course of justice was an attempt to avoid responsibility for the initial offending, by continuing to harass ES, in contravention of the interim family violence intervention order. While the applicant is not to be punished twice for this conduct, it took place against the background of a history of committing offences of this kind and other offences of violence.

40 Giving full weight to the mitigating considerations relied on by the applicant, but bearing in mind also the seriousness of the offending and the applicant's criminal record, the sentence of 2 years and 6 months for attempting to pervert the course of justice can be seen in the circumstances to be clearly within range. It sits comfortably with the sentences in Zakkour and Carter to which reference has been made. In any event, adapting what the Court said in the latter case, the fact that lighter sentences may have been imposed upon other offenders, even if one considers such cases to have involved worse offending in some respect, does not greatly assist the applicant in making the argument that the sentence imposed upon him was wholly outside the range available.[31] In that regard, the applicant placed particular weight on the intervening recognition in Worboyes of the greater utilitarian benefit attaching to a plea of guilty during the current pandemic. But this is merely to pick out one of a myriad of relevant sentencing considerations which might vary between the cases in question. It should be noted that the judge fixed a total effective sentence around two thirds of the sentence he would have imposed, if not for the plea of guilty. It is evident that the judge afforded a sizeable sentencing discount by reason of the guilty plea.

41 The interposition of the 12 month sentence for the initial offending was recognised by the judge as attracting the principle of totality. However, as the judge said, the effect was that the applicant lost the opportunity of seeking only a modest degree of concurrency.[32]

42 Taking all relevant factors into account, in my opinion the base sentence, total effective sentence and non-parole period imposed by the judge were all well within range. This was serious offending by a person with a significant and relevant criminal history which showed recalcitrance and abject defiance of court orders. In the present case, the order was made to shield his former partner from contact with the applicant, but his offending blatantly flouted that order and sought to press her to help him escape the consequences of the serious offending against her that had given rise to that very order. The sentencing judge gave ample weight to the matters in the applicant's favour, but the circumstances calling for a substantial term of imprisonment were compelling, and in my view the sentences were plainly open.

[2] Family Violence Protection Act 2008 s 125A.

[3] An application for an extension of time was granted administratively.

[4] The applicant's mother has a serious kidney disease and is currently undergoing dialysis.

[5] DPP v Shiryar (County Court of Victoria, Judge Gamble, 3 September 2021) [32]-[33] ('Sentencing Remarks').

[12] Ibid [28], [62]-[64]; Worboyes v The Queen [2021] VSCA 169.

[14] Ibid [68]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).

[25] [2020] VSCA 72 ('Zakkour').

[26] [2020] VSCA 156 ('Carter').

[27] [2021] VSCA 169 ('Worboyes').

[28] See Carter [2020] VSCA 156, [70] (Niall and Weinberg JJA) ('Carter').

[29] Mercer (a pseudonym) v The Queen [2021] VSCA 132, [65] (Maxwell P, Beach and T Forrest JJA) ('Mercer').

[30] Baker (a pseudonym) v The Queen [2021] VSCA 158, [37] (McLeish and Osborn JJA).

[31] Carter [2020] VSCA 156, [67] (Niall and Weinberg JJA).