DPP v Taylor [2018] VCC 1398 (30 August 2018)

Last Updated: 14 September 2018

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-01555

DIRECTOR OF PUBLIC PROSECUTIONS
v
ROBIN TAYLOR

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2018
DATE OF SENTENCE:	30 August 2018
CASE MAY BE CITED AS:	DPP v Taylor
MEDIUM NEUTRAL CITATION:	[2018] VCC 1398

REASONS FOR SENTENCE

---

Subject: CRIMINAL LAW

Catchwords: Totality, delay, ill health of prisoner

Legislation Cited:

Cases Cited: DPP v Hardara [2013] VSCA 149, R v Idolo [1998] VSC 276; [1998] VICSC 57, DPP v Taylor [2018] VCC 426.

Sentence: Total effective sentence of 12 months imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill (Plea) Ms A. Cooney (Sentence)	Director of Public Prosecutions
For the Accused	Mr P. Morrissey QC (Plea) Mr A. Lewin (Sentence)	Emma Turnbull Lawyers

HIS HONOUR:

1. Robin James Taylor, on 27 August 2018, you pleaded guilty to the following charge on the indictment no. C1510327.B.1:

Charge 1, using a false document. This charge has a maximum sentence of ten years' imprisonment.

2. There are a number of related summary charges that have all been transferred to this court. The prosecutor formally withdraw all of those related summary charges. You also admitted your prior criminal history and subsequent court appearance. I will deal with these matters in your personal circumstances later in the reasons for sentence.

Circumstances of Offending

3. During the period of the alleged offences, you, Robin James Taylor, resided with your wife Georgina Mater at 79 Jardier Terrace, South Morang. You and Ms Mater were the joint proprietors of a business known as Melbourne Sports Medicine and Anti-Aging (“MSMAA”), which was located at 728 Mount Alexander Road, Moonee Ponds. That business was registered with the Australian Securities and Investments Commission (“ASIC”) in the name of Robin James Taylor.
4. MSMAA was previously known as Melbourne Corporate Clinic Pty Ltd which was registered with ASIC in 2011. Your only formal medical qualification was a qualification in which authorised you to draw blood intravenously. You obtained that qualification from Western Australian School of Pathology in 2013. You are qualified to work as a phlebotomist.
5. In 2013, you were being investigated for drug related offences by police. You were convicted for these offences and are currently undergoing a sentence of seven years with a four and a half year non-parole period. The day of your sentence was 9 April 2018.
6. Police used telephone intercepts to conduct their investigations into the drug offences. Between 8 August 2013 and 9 October 2013, investigators intercepted the mobile telephone used exclusively by you and recorded all calls and SMSs. The mobile number of XXXX XXX 643 was listed on your company website as a mobile phone contact for that business.
7. Between 5 October 2013 and 7 October 2013, you spoke to Ben Pegoraro and his father, Joseph Pegoraro about providing fraudulent backdated urine tests for production in court in relation to a sentencing hearing. You agreed to supply the fraudulent test results. Joseph Pegoraro asked you to forward the fraudulent urine tests to Ben Pegoraro's lawyer, Emma Turnbull, by facsimile. He, Mr Pegoraro, asked the fax be marked "Attention Emma, re Ben Pegoraro."
8. On 8 October 2013, investigators executed a search warrant on your business premises. During the search, they located the facsimile cover sheet entitled "Attention Emma, re Ben Pegoraro," with two Melbourne Pathology urine tests in the name of Ben Pegoraro dated 22 August 2013 and 2 October 2013.
9. During the search of your company, a handbag belonging to Amy Georgievski was also searched and investigators located two Melbourne Pathology urine test reports in the name of Ben Pegoraro, dated 22 August 2013 and 1 October 2013.
10. On 31 October 2013, the two Melbourne Pathology reports in the name of Ben Pegoraro were examined by Peter Oakley, the pre-analytical manager of Melbourne Pathology. He noted that neither of those documents was compiled by Melbourne Pathology. Further, he made enquiries of the records held by Melbourne Pathology and gave the opinion that the information contained on the reports was not the result of testing by Melbourne Pathology.
11. On 23 June 2014, investigators executed a search at the office of Emma Turnbull Lawyers. During that search, investigators seized:

(a) two copies of what purported to be Melbourne Pathology urine screen reports in the name of Ben Pegoraro, dated 22 August 2013; and

(b) two copies of what purported to be Melbourne Pathology urine screen reports in the name of Ben Pegoraro of 1 October 2013, one copy of a facsimile cover sheet entitled, "Attention Emma, re Ben Pegoraro."

12. It is not alleged by the prosecution that these false documents were used or presented to a court in the Ben Pegoraro matters. The prosecution contend that after speaking to Ben Pegoraro and his family on 7 October 2013, you faxed the two documents purporting to be urine screens for Ben Pegoraro to the office of Emma Turnbull Lawyers. When you did so, you knew that they were to be presented to a court. At the time you prepared the documents, you knew that they were not genuine Melbourne Pathology documents and that they falsely purported to establish that he, Ben Pegoraro, had not consumed any illicit substances in the period leading up to the date on which those urine samples were purportedly taken. That is the charge of using a false document.
13. You were interviewed after the execution of the search warrant on 8 October 2013, you admitted that you were the sole user of the mobile phone referred to earlier in these reasons, however you relied upon your right to make not comment when asked about the alleged offending.
14. The offending occurred in 2013. It was commenced as a charge in July 2015. This charge was one of many that was mixed up with the substantive drug charges which were the subject of a trial in March and April of this year before Judge Patrick. I accept that in the context of your overall offending and your plea to this charge on 19 July 2018, that your plea is not at the earliest time but is not made on the eve of the trial either. Your plea has utilitarian value and has a positive sign for rehabilitation.

Personal Circumstances

15. You are now 48 years old, fast approaching your 49th birthday. The offending occurred when you were 43 years old, nearly five years ago. On 9 April 2018, you were sentenced to seven years' imprisonment. A non-parole period was fixed for four years and six months at that time. At the time of your sentence, you had served 129 days' pre-sentence detention. On the basis of your present sentence, the earliest you could be released from prison is mid-2022 when you are approaching your 53rd birthday.
16. You have an extensive criminal history. Your first court appearance for dishonesty was in 1988 at the Broadmeadows Magistrates' Court for theft of a motor car. You have had 11 further court appearances since that time and the time of the offending in this case. You were on parole for drug offences when you committed this offence. Your offending in the past is for drug and dishonesty offences. You have subsequent offending relating to drug offences. You are in custody for all of that now.
17. You grew up in the Coburg/Pascoe Vale area. You have a twin brother whom you have not seen for approximately 20 years. Your sister died in infancy. Your parents separated when you were young. You remained in the care and custody of your mother. You were subjected to violence from your alcoholic mother. The passing parade of your mother's boyfriends who were substance abusers and involved in criminal activity.
18. The one stable factor in your family constellation was your grandfather. He passed away in 1993. In 2006, your father died. In 2010, whilst you were in custody, your mother passed away. You were living with your partner, Ms Mater, and your 21 year old daughter prior to your incarceration. Your daughter has substance abuse problems which cause you great concern.
19. Your grandfather supported and encouraged your education. After your schooling finished, your grandfather helped you get a job as a store person at CSL. Whilst working at CSL, you completed Year 12 and then went on to train as a laboratory technician. You even started studying at Melbourne University for a Bachelor of Science degree. You have worked as a crowd controller and a labourer. In 2011, you obtained your qualifications to be a phlebotomist.
20. In that year, Ms Mater and yourself commenced a sports medicine business known as MSMAA in Moonee Ponds. Your partner still conducts that business.
21. As a young man, you were a keen sportsperson playing football and bodybuilding. More recently, you have raced muscle cars, as they were described, in designated venues such as Calder Park Raceway.
22. In 2000, you had an operation to remove a tumour in your pituitary gland. You have endocrinological problems since that time which require no less than eight separate medications to manage whilst you are in custody. A full list of these prescribed medications are set out on p.2 of Dr Trina Gilbert's report dated 19 August 2018, Exhibit “4”. Dr Gilbert recommends these treatments continue to deal with your condition of panhypopituitarism. You have been diagnosed as suffering from benign prostatic hypertrophy and urinary retention and Type 2 diabetes.
23. All in all, you are not a well man. Associate Professor Douglas Lording, in his report dated 8 December 2017, Exhibit “5” agrees with Dr Gilbert's diagnosis and the ongoing treatment recommendations.
24. Mr Ian McKinnon, psychologist in a report dated 11 December 2017, Exhibit “3” has assessed you and diagnosed you as suffering PTSD and personality disorder. His assessment was that your functional intelligence fell within the normal adult range. Mr McKinnon states as follows,

"In my opinion, Mr Taylor does not possess an inherently antisocial or criminal character. However, Mr Taylor appears to have a tendency to bend the rules at times, not necessarily or consciously intending to transgress against the rights of others or deprive them of their property, rather to achieve the specific ends he has formulated and believes justified in energetically pursuing at the time. This kind of behaviour appears to have led Mr Taylor into trouble on several occasions, leaving him somewhat surprised in feeling unfairly persecuted by authorities. Nevertheless, Mr Taylor appears to possess a basic morality (probably imparted to him by his beloved grandfather) and this is expressed by his desire to pay his own way in life, a strong tendency to stand up for others against bullied and involvement in charity organisation, Big Umbrella, which feeds the homeless people in Melbourne and financial contributions to other charities, emotional attachment and devotion to his partner and his daughter and a limited friendship circle."

25. You were also assessed by Jane Lofthouse, a neuropsychologist to assess the impact of the head injuries you have suffered in transport accidents in the past. Her report was dated 5 March 2018, Exhibit “2”. Ms Lofthouse applied the Wechsler Adult Intelligence Scale and Memory Scale tests. You were assessed as a full scale IQ to fall in the average range. Your verbal IQ was higher than your perceptual or reasoning IQ. I accept that Limbs 5 and 6 of Verdins Case are applicable in your case. I accept that your medical and psychological conditions will make your time in custody more burdensome than a person of normal health. I also accept that your time in prison will have some adverse effect on your mental health and this factor tends to mitigate your overall punishment. I note that this finding is consistent with the approach and findings of Judge Patrick who sentence you in April 2018.

Sentencing Considerations

26. The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and the denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community denouncing your criminal conduct with the interests of the community, seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society.
27. I also am required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for the sentences at the time. I have considered the statistics and current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case and indeed as they are from one another. Of course, current sentencing practices are but one of the considerations I must take into account.
28. You have pleaded guilty to this charge. This offence was committed at a time when you were offending which resulted in your present sentence of seven years with a four and a half year non-parole period. For tactical reasons, you did not resolve this matter until after the jury verdict and sentence on 9 April 2018.
29. Your plea is not an early plea. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of the court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
30. Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to this charge indicates and demonstrates some remorse on your part.
31. The seriousness of this offence is informed by the following matters:

(a) the maximum penalty is ten years' imprisonment;

(b) the intended use of the document was to mislead a court and in this case, this was for the benefit of another and did not actually occur in any event;

(c) the offending is limited in time and scope;

(d) the documents were realistic in appearance, as in you were charged with use rather than make a false document; and

(e) you committed this offence whilst being on parole for sentences imposed for drug trafficking. That is the 2010 conviction.

32. The offending occurred in 2013. You were initially charged with this offending in 2015. The drug offences then proceeded through the courts until finalisation on 9 April 2018. The delay between the offending and the sentencing, a period of some five years, is not attributable to the prosecution or yourself in any direct way. Whilst there has been one subsequent court appearance for offending after 2013 for possession of testosterone and prasterone and a Schedule 4 poison. I do not find that that offending lessens the effect of delay on you in this case.
33. Where rehabilitation is not just prospective but has been shown to advance by the time of the sentence has it has been a little bit in this case, the focus moves from the need to facilitate rehabilitation to the need to preserve the progress already achieved. The fact that an offender has engaged in an effective process of rehabilitation during a lengthy period on bail, while you remained in the community, with only the one court appearance is an important mitigatory factor in sentencing you.
34. Undue delay may also lead to unfairness which requires some degree of compensation in the sentencing process. In the case of The Queen v Idolo, Tadgell JA recognised that undue delay may result in additional punishment. His Honour stated as follows,

"There is a natural anxiety occasioned to a person suspected of or charged with an offence until arraignment. If this period is unduly long, it may, and ordinarily will, be appropriate to reflect it by way of mitigation of the sentence to be imposed."

35. You had the impending criminal proceedings hanging over you for a long time. In this particular case, you have pleaded guilty and you are probably aware that by doing so, you would face imprisonment at the time of this sentence. In my view, the undue delay in this case had the effect of an additional punishment on you.
36. The offending does call for your sentence to reflect some specific deterrence. You have an extensive criminal history for dishonesty offences. The principle of general deterrence obviously has a part to play in your sentence to signal the preservation of the integrity of the criminal justice system set up to protect the community. In combination, specific and general deterrence call for a term of imprisonment for this offence.
37. I assess your prospects of rehabilitation as guarded. Over the course of your life, you have bent the rules to suit your own advantage. This approach has resulted in a significant criminal history for dishonesty offences. Nevertheless, you have a supportive partner and an ongoing business conducted by her to return to upon your release from prison. You also have the responsibility of supporting your daughter who is a drug addict. Your rehabilitation will be enhanced by an extended period of parole under the control of the Adult Parole Board.
38. The final matter to consider is the principle of totality in sentencing. Harper JA in DPP v Haidara [2013] VSCA 149 says as follows at paragraph 49, referring to totality,

"The grounds require further consideration of issues of totality. When sentences are imposed for numerous offences, the sentencing judge should 'stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable sentence to impose.' This is an aspect of the totality principle, which, as the High Court said in Mill v The Queen, 'is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences.' It is described succinctly in Thomas, Principles of Sentencing as follows:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences to each properly calculated in relation to the offence for which it is imposed and each properly made a consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate.' The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what the appropriate sentence for all of the offences."

39. In this case, I am passing sentence on you following those of Judge Patrick, Just pausing there, in this case, because this particular matter wasn't dealt with by Judge Patrick, that totality overview at the time of 9 April 2018 was not afforded to you.

"The principle has a wider application than in the case specified in the passage quote above as Thomas points out, 'The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is service a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases, the final duty of the sentencer is to make sure than the totality of the consecutive sentences is not excessive.'"

"The courts have for these reasons shown an aversion to the imposition of crushing sentences except where these are either required by statute or are, in exceptional circumstances, otherwise plainly justified. There could, in my opinion, be no justification for imposing a crushing sentence if the only warrant for it was the notion that where an offender has committed an offence which carries a minimum sentence, that minimum must be cumulated in full upon other sentences imposed at the same time."

40. For reasons that are not clear to me, this matter could have been dealt with at the time of your sentence for the drug offences in April 2018. I find that the principle of totality still applies in your case here even though this offence is completely separate from the offences for which you are currently serving a sentence.
41. The principles of specific and general deterrence call for a term of imprisonment. A degree of cumulation of that sentence upon the existing total effective sentence of seven years is appropriate to reflect the just punishment. However, this sentence should not increase the non-parole period, so that the hope of rehabilitation is snuffed out and that the principle of totality is preserved by not imposing an additional minimum term that may form a crushing sentence.

Would you stand please?

42. On Charge 1, you are convicted and sentenced to 12 months' imprisonment. I order that six months of that sentence be served cumulatively on the sentences you are currently undergoing. I make no order to change the non-parole period which was fixed by this court on 9 April 2018.
43. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 18 months' imprisonment and ordered an additional non-parole period of six months.
44. I have signed the disposal order that was sought and consented to.
45. What the effect of the sentence is Mr Taylor is that I have added six months to your head sentence, the total effective sentence of seven years, so now it is seven and a half. Your non-parole period has not been changed. That is four and a half. It just means that if and when you get parole, and that is a matter for you and the parole board, that your period on parole is extended, do you understand?
46. OFFENDER: Yes, Your Honour.
47. HIS HONOUR: Yes, thank you. Are there any questions about that or any matters I have not attended to?
48. MS COONEY: No, Your Honour.
49. MR LEWIN: No, Your Honour.
50. HIS HONOUR: Thanks. I have signed that disposal order and I will hand it down. You are clear about that, Mr Taylor?
51. OFFENDER: Thank you, Your Honour, I am.
52. HIS HONOUR: Do you need to speak to your lawyer?
53. OFFENDER: No, I don't, thank you.
54. HIS HONOUR: All right, I will just close the link in that case, thank you.