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DPP v Christensen (a pseudonym) [2019] VCC 1111 (19 July 2019)

Last Updated: 4 September 2019

AT MELBOURNE

CRIMINAL JURISDICTION

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REASONS FOR SENTENCE

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Subject: SENTENCING

Catchwords: Plea of guilty – attempting to pervert the course of justice – perjury – offending arose from breakdown of relationship and dispute about access to child – previous stable life and work history – creating false crime to expose innocent person to potential prosecution and conviction

Legislation Cited: Sentencing Act 1991 s 6AAA

Cases Cited: R v Healy (unreported, Court of Appeal, 4 August 1997); R v Schroen [2001] VSCA 126; DPP v Aydin and Kirsch [2005] VSCA 86; DPP v Josefski [2005] VSCA 265; R v Buscema [2011] VSC 206; Tognolini v R [2011] VSCA 113; (2011) 32 VR 104; Smith v R [2014] VSCA 241

Sentence: TES: 5 months’ imprisonment followed by 18 month CCO with unpaid work

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HER HONOUR:

1. Robert Christensen^[1], you have pleaded guilty to one charge of attempting to pervert the course of justice, and one charge of perjury.
2. Your offending occurred between July and September 2017. It arose from a background that you had been in a relationship for about two years with Ms Margaret Chico^[2]. It had been somewhat unstable as a relationship, and you finally separated in November 16, by which time she was pregnant with your child. He was born in March 2017. You wanted a role in your child's life, and for about a month after the birth, you were able to see him. However, dispute arose between you and Ms Chico to the extent that you and she applied for family violence protection orders against each other, she including the baby, as an aggrieved family member, which thereby prohibited you from contact with him.
3. On 7 July 2017, an Interim Family Violence Protection Order was made at Broadmeadows Magistrates' Court prohibiting Ms Chico from contacting you, including via text messages.
4. On 21 July 2017, there was sent to your mobile phone a series of five text messages which were abusive and threatening, including to the effect that the sender knew where you lived and where you worked, and one said, “you're dead.” Later that day, you attended the Faulkner Police Station reporting those messages. You told police that in the circumstances of your relationship with Ms Chico you suspected that she had sent the messages.
5. On 4 August 2017, you made a statement to police, expressed to be in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury, in which you described the receipt of the abusive and threatening text messages which you suspected were from Ms Chico.
6. Police investigations found that the phone number from which these texts had been sent was registered in Ms Chico's name. They arrested and interviewed her. She denied sending the texts or knowledge of the offending phone number, but said that you might still have copies of some of her identity documents.
7. Further police investigation showed that the offending phone number had been used near towers near which you were located at those times and, although you continued in the false story, a search of your home found another phone, SIM card, and receipt for it dated the day before the texts were sent, and also found was a copy of Ms Chico's passport.
8. Your conduct of creating a fake offence and reporting it to police, including the subsequent false formal statement to police, intending that Ms Chico would be charged with having breached the Interim Family Violence Protection Order against her, are the circumstances that give rise to Charge 1 of attempting to pervert the course of justice.
9. On 8 September 2017, you completed an application for assistance form for the Victims of Crime Assistance Tribunal (abbreviated to VOCAT). In that form, which was confirmed by statutory declaration, you claimed to be the victim of threats made on 21 July 2017 from your ex-partner, and that the effect on you had been stress and anxiety to the point where you resigned due to the threats to do violent acts at your workplace. You gave the details of having reported the matter to police on 21 July. The making of this statutory declaration knowing that some of its content was untrue, is the basis of Charge 2 of perjury.
10. As I have said, in the course of investigating your report of this offending, police contacted Ms Chico, requiring her to attend Knox Police Station. On

    13 August 2017, she went there, was arrested and formally interviewed by police. During that recorded interview, she denied knowledge of the messages or the offending phone number, and said she had not had any contact with you since the Family Violence Protection Order was made. She told them that you might have had access to copies of some of her identity documents, including her driver's licence and passport. At the end, she was told that there would be further enquiries made and that she may be charged with breach of the Intervention Order.

11. It was not until many months later that Ms Chico was told by police that she would not be charged and, indeed, that their investigations indicated that you had sent the messages to your own phone.
12. Ms Chico has made a Victim Impact Statement and read in court those parts properly included in the statement.
13. I accept that she was concerned and anxious when police told her to attend the police station and the reason. This was less than five months after the birth of her child, and I accept that it is likely that as a new mother with a young baby, she was more than usually emotionally vulnerable at the time – and that the experience of being accused of such offending and interviewed by police for it, was what she calls “a lot of emotional trauma.” She was concerned that her family thought she had done something wrong. At the police station, she felt humiliated being interviewed formally and tape recorded, and then being fingerprinted and photographed. She says she felt sick at the thought that she would face court and, if convicted of a crime she did not commit, would have a criminal record for the rest of her life.
14. Ms Chico also said, and I accept, that even after she was told by police that she would not be charged and why, she could not understand how the father of her child could do this to her, causing her this pain and suffering.
15. I must assess the objective seriousness of this offending and your personal role in it.
16. The maximum penalty for the charge of attempting to pervert the course of justice is 25 years' imprisonment, and for perjury it is 15 years' imprisonment. Maximum sentences are generally reflective of the objective seriousness with which parliament, on behalf of the community, regards offences of the nature of each such offence.
17. However, in relation to Charge 1, that is of attempting to pervert the course of justice, it has been noted^[3] that for this charge the prescribed maximum penalty is of less utility than otherwise might be the case,^[4] and the infinite variety of circumstances in which such offences may be committed means that sentencing judges can derive minimal assistance from the high maximum.^[5]
18. [I will just interpolate here I have footnoted that in a number of other propositions from case law which are to come. I will not interrupt the flow of the sentence by citing the cases in general but they will be footnoted in the revised reasons.]
19. The circumstances in which the offence is committed are of more objective guidance, in particular, in relation to Charge 1.
20. While the maximum penalty may be of little guidance, the objective seriousness of this offence has been described, again in the Supreme Court, as being conceived as striking at the heart of the justice system,^[6] and that those who interfere with the due course of justice commit a grave injustice so far as the community is concerned.^[7] Such conduct can reduce the community's confidence in the integrity of the justice system. The offence has been described as ordinarily necessitating a custodial sentence. However, and as I shall later discuss, there are many circumstances where no immediate custodial sentence has in fact been imposed. The authorities also say that as the offence is broadly defined, it may be committed in a wide range of circumstances and the particular circumstances of each case must be viewed to assess the gravity of the offending.^[8]
21. Conduct amounting to attempting to pervert the course of justice may involve deliberately misleading police in an investigation, or attempting to interfere with witnesses, or with other evidence already obtained by police in order to undermine prosecution against the offender or some other person. It may also be intended, as your conduct was, to cause an innocent person to be accused of a crime that person has not committed and potentially to be prosecuted and convicted for it. Offending of this type makes the innocent person the victim of the offending and objectively is usually to be regarded as more serious than the earlier category.
22. In this case, Ms Chico was the intended victim of your offending under Charge 1. I have taken into account that the offending had considerable emotional impact on her, which I take to have lasted for some months because it was not until March 2018 that you were interviewed and the items found in your house. Even after she was advised by police that she would not be charged and, indeed, that you had created the text messages yourself, she remained upset that you, the father of her child, could have done this to her.
23. As to your personal culpability, the plan was entirely your own, without any urging from anyone else, and its purpose was to instigate a police investigation aimed against Ms Chico. It was not a single impulsive or spontaneous act. There was premeditation or planning by you from at least the previous day, in that you clearly registered a phone number in Ms Chico's name that previous day, using her identity documents, and you maintained your purpose – by sending the text messages at three different points in time over a nine hour period. You continued to maintain that purpose by then attending a police station and making a false report of circumstances which you intended would cause police to investigate and pursue a charge against Ms Chico for breaching the Intervention Order you had obtained against her. You continued to pursue this course by making a formal statement to police two weeks later.
24. I am told that this occurred in the context that you were suffering the effects of the breakup of a volatile relationship, which had destabilised your life from mid-2016 at least, and that you were particularly distressed (your brother describes you as distraught) at being denied contact with your baby son.
25. I accept that your judgment may have been affected by your emotional reaction to being excluded from contact with your child through Ms Chico having added him to the intervention order that she had obtained against you, but this was a plan by you to use the legal system, either as some revenge on her or as the lever to obtain the contact you sought with your son. It also brought about considerable investigation time for police in following through, all of which of course ultimately was unnecessary.
26. As I have already said, in your case the offending involved some planning or premeditation – all by you personally – and carrying through with sending the messages to your own phone, then reporting them to police, then making a formal statement two weeks later. Although there was no personal confrontation or violence, you instigated a plan to misuse the justice system for your own purpose, and in doing so you put your former partner in a difficult legal position, facing potential prosecution and conviction for an offence you had dishonestly created, and caused her considerable stress as a result. That distress lasted some months until your wrongdoing was detected. As I have said, you also wasted a fair amount of police time. Even if your judgment was clouded by distress, and your seeking to obtain contact with your child, the seriousness of what you sought to do must be recognised in your sentence.
27. For these reasons, I consider this to be a more serious instance of the offence of attempting to pervert the course of justice than where a person makes a false and misleading statement to police as a rash or panicked reaction to being confronted themselves by accusation of committing an offence, or to assist someone else to avoid being detected or prosecuted.
28. However, there certainly have been noted in the past and conceivably in the future will be, many much more serious instances of this offence than yours was.
29. The charge of perjury is also an objectively serious offence which also involves undermining the integrity of, and community's confidence in, the justice system. It is a difficult offence to detect.^[9]
30. In your case, the making of the false statutory declaration in applying to VOCAT was not a necessary further step in your attempt to pervert the course of justice, that is, your commission of Charge 1. The offence here of perjury relied on the same false accusation you had made against Ms Chico, but it was the initiation of a claim for compensation for yourself. I accept that you took that application no further, so came nowhere near obtaining a compensation payment based on the perjury. In that context it was a single act which was not pursued, but it was a further offence in itself, connected with, but not solely a continuation of the offence under Charge 1. For that reason, some modest cumulation in the sentences is required.
31. On 5 March 2018, you attended Faulkner Police Station at police request, and were arrested and interviewed for this offending. Initially, you denied any knowledge of the origin of the offending phone number that sent the threatening messages to your usual phone, and also could not explain that both were connected to the same mobile phone tower at the same time. Police then suspended the interview and executed a search warrant at your home, where they found some documents, including a photocopy of an Australian passport of Ms Chico, and also a second phone and SIM card with a faded receipt dated

    20 July 2017. When confronted with that, you still did not admit your wrongdoing, and said you had loaned the phone to Ms Chico in early 2016, while hers was being repaired, and she had not returned it until after the offending messages were sent. As I have said, you continued to find excuses for the objects that had been found.

32. I accept that once your present solicitors were acting for you, experienced in the conduct of criminal cases, there was negotiation as to the charges, and you indicated an intention to plead guilty soon afterwards. The prosecution does not challenge that this should be regarded as a relatively early plea of guilty.
33. You are entitled to some leniency for pleading guilty, and particularly if it is regarded as relatively early. In doing so, you have saved the community the time and cost of disputed hearings, have saved witnesses and, in particular in this case, Ms Chico having to experience the stress of giving evidence in court, and by your pleas of guilty you accepted responsibility for your offending. In your case, I also take the pleas of guilty as a reflection of remorse and there is some other evidence of remorse to which I will shortly refer.
34. I shall tell you what your sentence would have been had you not pleaded guilty after I have imposed sentence.
35. I turn now to your personal circumstances.
36. You are now aged 37. You were brought up in Melbourne in what I am told was a supportive and religious Italian family. Both of your parents worked, as your father still does. Your older brother, in his reference, describes you and he being close all of your life. He describes you doing a lot to assist your parents, and that you are not regarded within the family as ever having been inclined to deceitful behaviour. Your parents and older brother have all been in court to support you, as well as some friends.
37. You completed Year 12 at school in 1999, then undertook a bridging course the following year. I am told that from 2002 you undertook an Advanced Diploma in Graphic Design at Victoria University, and from 2005 have been employed as a graphic designer. You, as I say, have worked in that field ever since, either employed or, for a few years, self employed as a subcontractor. For the last

    18 months, you have been employed as a graphic designer with a large company. Amongst the personal references provided are two from people with whom you have worked and remained as friends, who describe you as well liked and respected by fellow workers, and your being respectful and supportive towards others.

38. Until the relationship with Ms Chico, it seems that your personal life had been stable and responsible, including a circle of long-time friends, support for your parents, and brother and his family, and for other friends, that you participated actively in community activities, and that you had engaged in caring relationships. I am told that you had had two previous long-term relationships, one of seven years, starting when you were aged 19, and another in your late 20s for two years with a partner who returned to live overseas. One of the references provided for you was from another woman who says she had a six month relationship with you, and that you have remained close ever since. She says during the relationship, and ever since, you have been close to and very good with her son, whom she brings up as a single mother, and you have been supportive of her, both emotionally and in practical terms
39. I am told that you met Ms Chico in 2014 socially, and that the relationship commenced about April 2015, but was always volatile, and you lived apart at times. Although you finally separated in November 2016, you had been living separately much of the time in the preceding months, although you seem to have tried to reconcile after Ms Chico discovered she was pregnant.
40. You had no prior criminal record before the conduct that brings you before me. However, subsequently you have faced courts for offences that in fact occurred before the offending for which I sentence you. In February last year in Melbourne Magistrates' Court, you were sentenced to a Community Correction Order without conviction for 12 months. This was for a charge of breaching an intervention order, which breach occurred on 25 October 2016, and involved

    Ms Chico. I am told that as a result of police being called to an argument before that, an Intervention Order had been made against you, prohibiting you from assaulting, harassing or threatening her, but not prohibiting contact between you. I am told that the breach of 25 October occurred on a night when you and Ms Chico had had an argument at home, and you have pushed her outside, dressed only in a nightie and locked the door. She was pregnant at the time. Police were called.

41. The second matter that has brought you before a court since the offending for which I sentence you, was dealt with at Melbourne Magistrates' Court on 3 May last year. That was for an unlawful assault which had occurred in June 2017, which I am told arose out of a road rage incident with another person who was drunk. This incident had not involved Ms Chico, nor any other female. For that charge, you were placed on a Community Correction Order for nine months with 80 hours of unpaid community work and no other conditions.
42. Both of those previous Community Correction Orders have been completed.
43. It was submitted on your behalf that prior to 2016, you had been living a stable life, undergoing education, working, living in successive long term relationships, enjoying friendships and associations, and contributing in the community, and regarded by friends and family as of good character. In contrast, during and following the breakup of your relationship with Ms Chico, something different was occurring in your life, and I am urged to accept that this offending was out of character for you, an aberrant although serious lapse, as supported by the several personal references.
44. I have read all of the personal references, and there are several of them that were tendered. These are from long-time friends, former work colleagues who continue to be friends, a former partner of yours, as I have said, and from your older brother. All describe you as a caring and supportive person. You are described as having been generous with your time, and gone out of your way to assist people in various ways. One person describes you as a solid character, rational and stable, who had been respected and much liked for those traits.
45. All of the writers of these references know of this offending that brings you before me, and either call it out of character or aberrant for you. Some also say that you confided at the time that you were distraught at being unable to see your child. They also say you have expressed embarrassment and deep regret for this offending. I accept that each of these references is genuinely the views of the writer, and that the writers all remain supportive of you, and several have been in court to support you.
46. I have read a report on you by a consultant psychiatrist, Dr  Gregory White , which was clearly prepared for the purpose of family law issues about which I will speak shortly. In particular, it was prepared to assess any unsuitability by reason of a psychiatric or personality disorder for a parenting role with your young son. From the history taken from you, and Dr White's assessment of you at interview, and much documentary material apparently supplied to him but not to me, he found no evidence that you were at risk of any particular future behavioural or psychiatric disorder, and no indication that you require any ongoing psychiatric treatment.
47. In the history he took, you told him that in August 2017, you had attended a psychologist, and did so for three months, when you realised that you needed to talk about what you had gone through, and were feeling run down and uncertain, and you found it definitely helped to talk. You were not prescribed psychiatric medication at that time, or any other. I interpolate here that I note that is exactly the timing of when this offending had occurred, or had just occurred, and do take it to reflect that you perceived yourself in need of some professional help at that stage.
48. Dr White recorded that you told him of having used some drugs in your 20s with friends, but that you decided to cease that by your late 20s, and no longer found it of interest to you. You told him that you had used cocaine and ice, however, together with Ms Margaret Chico, a couple of times before your son was conceived, but that there had been no such use of any drugs thereafter. There have apparently been random drug screens taken from you at the instigation of Ms Chico's lawyers, as part of the dispute about contact visits with your son. I am not sure what evidentiary basis there was for a need for this, but in any event, from the 11 negative reports that were tendered before me, covering a period since last October, I am satisfied that you are not currently using, or at risk of using, illegal drugs, and probably were not well before that. You also have no history of alcohol abuse.
49. There are still family law proceedings on foot between you and Ms Chico. I am told these were initiated by you in about May 2018, when you came to a realisation that you needed to use appropriate legal means to resolve your differences with Ms Chico in relation to your future role as father to your mutual child.
50. Since mid-2018, pursuant to agreed interim orders, you have had contact visits twice weekly with your son, but until recent months all were under professional supervision, for which you paid, and all at a neutral visiting centre. I am told that more recently that has been varied so that one visit a week is still supervised and another not, and the one that is not usually occurs at your parents' home, where you have been living since these charges were laid.
51. I declined to accept tender of some 95 pages of reports on supervised visits, but I have read a report from AXIA Solutions, of a two hour supervised contact visit on 15 April 2019. It reflects to me that in both practical and emotional terms, you have developed a deeply caring and loving relationship with your young son, who smiled when you arrived, and reached out to hug you when you picked him up, and you hugged and kissed him. It is not for me to comment on issues in a family law dispute, but for purposes of this sentence, I am satisfied that this report is consistent with what I have been told about the importance to you of building an ongoing relationship with him and role, in his life, and being willing to go to considerable effort to do that, now through legal means. Hopefully, for both your sake and the child's, this sentence in itself is not used to undermine that.
52. However, I am urged to consider the impact of any sentence I impose on your relationship with your son. Born in March 2017, he is now aged just two years and four months. I accept that you have been anxious all along to have a role in his life, and feel genuine love for him. I accept that you are prepared to maintain that relationship with him, even though you are not living with his mother. I accept that, since issue of proceedings in the Federal Circuit Court, in order to have regular contact visits with him, you have agreed to pay all costs for professionally supervised visits, have submitted to undergo testing for drugs, including random supervised screens as requested by Ms Chico's lawyers, and have also undergone psychiatric evaluation for the same purpose by Dr White.
53. As I accept that you have indeed been anxious as to how your sentence may impact your prospects, both legally and in practical terms of continuing your relationship and contact with your young son, I have taken into account in some mitigation of your sentence the impact of this concern on you if you are to serve time in prison, as making the experience of imprisonment more onerous or bearing more heavily on you than it would for someone without that worry.
54. You have also undertaken some programs to assist your understanding of your own conduct that led you to the point of committing these offences, and to avoid similar circumstances arising again. From late May to late August 2018, you undertook and completed a Lifeworks Men's Behaviour Change Program. This involved a 90 minute intake and assessment interview, and then 13 sessions. Prior to this, you had not received professional assistance dealing with relationships. I accept that your commitment to such a program over that sustained period reflects your willingness to learn to deal differently than you had with Ms Chico in a relationship, including its break-up, and the aftermath of dealing with how to bring up the mutual child.
55. You have also undertaken a three session workshop held in May and June last year called 'Parenting After Separation', and I accept that that is also addressing entirely appropriately the perceived issues that underlay and led to this offending.
56. A bundle of drug screen results for the period from July last year to May of this year were tendered and show that you have been clear of drugs.
57. I accept that this material as a whole shows that since mid-2018 you have done a lot – it is submitted all you reasonably could have done – to reform, and to show that you are prepared to do what is needed to satisfy Ms Chico and the courts that you are fit to be actively involved in your son's upbringing. The nature of the courses you have undertaken also reflect that you have realised, and taken seriously, the wrong you did to Ms Chico by this offending, at least under Charge 1. I assess the prospects of you reoffending in any similar manner as low. I accept that this reflects genuine remorse and insight on your part.
58. Given your lack of prior criminal history, history of previous stable relationships, steady employment, long term friendships, and supportive family, and with the programs and steps you have undertaken to address how to handle relationship stressors, as well as your commitment to having a positive ongoing role in your young son's life, I am satisfied that the risk of you reoffending in this or, indeed, any other type of manner, is low and that the prospects of your rebuilding a stable and responsible life for yourself are good. Even though you are in your mid-30s, and therefore beyond what the law regards as youthful in this context, facilitation of an offender's rehabilitation is still ultimately in the community's interests as well, of course, the individual's interests. As you have no prior criminal history, you are entitled to have that recognised by giving due weight to your rehabilitation prospects, and a sentence that will take into account facilitation of your rehabilitation.
59. I was urged to impose a non-custodial sentence, through a CCO. I was referred to sentencing statistics from sentences in this court for the charge of attempting to pervert the course of justice – in which of a total of 38 sentences summarised over the period of 2016 to 2018 – just over 50 per cent were noncustodial sentences, three being for undertakings, and 19 for CCOs not in combination with imprisonment. In contrast, 16 were sentences of imprisonment, some of which were in combination with CCOs. I have perused and considered in general those in which wholly noncustodial sentences were imposed, as well as those for which custody was imposed. Those that did not impose any immediate custody involved cases where conduct misled police who were already investigating an alleged crime that had occurred, in order to divert their attention from either the offender or another person. I note, however, some do involve what objectively should be regarded as serious instances, and a number involve where the person had a long criminal and antisocial history, which you do not.
60. I have also considered sentences in the Court of Appeal to which I was referred, of Smith^[10] and Josefski.^[11] In the period they were handed down, wholly or partially suspended sentences were still available, as they no longer are. CCOs are now the appropriate manner instead of those if it is a case that warrants a period that is not to be served in custody.
61. In relation to the charge for perjury, statistically there are too few sentences for that offence alone which could be useful comparisons, but I note that a number of the cases relating to attempting to pervert the course of justice discussed the interplay of when there has been a separate charge of perjury, and which was more serious in those situations.
62. The prosecution in your case submitted that the seriousness of this instance of attempting to pervert the course of justice requires some immediate imprisonment to sufficiently convey general deterrence and denunciation, but that a combination sentence would be within range. I take the prosecution's submission to mean that no greater period than one year imprisonment is necessary to fulfil sentencing requirements.
63. I declined to have you assessed for a pre-sentence report on your suitability for a Community Correction Order. As I said at the time, that was because any CCO I might impose, whether in combination with imprisonment or alone, was unlikely to involve any condition other than unpaid community work. That is because the only psychiatric material before me indicates no mental health disorder. I have evidence that you have not been using any illicit drugs, at least for the last 10 to 12 months, and no history of other than infrequent use prior to that. Further, you have satisfactorily completed two CCOs since this offending, one of which had some remedial conditions, and you have completed a

    13 session program addressing men's behavioural change. It was difficult to see what conditions other than unpaid community work might be recommended for a CCO, and that meant that I did not need a pre-sentence report.^[12]

64. I have explained why I consider this instance of attempting to pervert the course of justice to be serious, both objectively and subjectively, and that the nature of the offence calls for a sentence to convey sufficiently the gravity of the undermining of the justice system, requiring general deterrence and community denunciation as the most important sentencing factors. I consider that you have already realised the consequences and that that has delivered much specific deterrence which, in my view, is a less important sentencing factor in your case. Weighed against those considerations, I have taken into account in mitigation the fact that you have pleaded guilty, your lack of prior convictions, your previous solid and stable personal history, including long term relationships, history of employment, friendships, and lack of history of problematic behaviour through alcohol or drug abuse. I have also taken into account that, since acknowledging your offending and deciding to try to resolve your ongoing issues with Ms Chico about contact with your son through the legal system, you have shown considerable commitment to, and engaged at considerable personal expense, in remedial and rehabilitative conduct. I have also borne in mind that you have made great effort under difficult circumstances to establish a loving relationship with your two year old son, are anxious to continue that, and deeply concerned that it may be interrupted by your sentence. There is no evidence of any likely effect on him if that is interrupted by your being imprisoned, but I have been prepared to assume that it will not be helpful, and could have some adverse effect with such a young child.
65. Taking all of these matters into account, I have come to the decision that the circumstances of the offending under Charge 1 were such that no sentence that does not require some time to be served in prison would adequately address sentencing principles. The nature of the offence in this instance was simply too serious. I am going to impose a combination sentence, enabling you to complete your sentence in the community through the penalty of being required to perform unpaid community work, and I have moderated the time you are to spend in custody, taking all of the factors I have mentioned into account.
66. Would you stand up now, please.
67. Robert Christensen, on Charge 1 of attempting to pervert the course of justice, you are convicted and sentenced to four months' imprisonment, to be followed by a Community Correction Order to last 18 months, with the sole condition that you perform 200 hours of unpaid community work over that 18 month period.
68. On Charge 2, of perjury, you are convicted and sentenced to three months' imprisonment.
69. I direct that one month of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1, making a total effective sentence of five months' imprisonment, to be followed by a CCO to last for 18 months, commencing on your release from prison. That, in effect, means, as you have not already spent any pre-sentence detention in custody, that you are likely to be released from prison no later than 18 December of this year.
70. I have said that the only condition on the CCO will be that you perform 200 hours of unpaid community work. That means that if you complete that work in less than the 18 months, the CCO will be completed at whatever time you complete the work.
71. In addition to the work condition while the CCO is on foot, all usual terms apply. I am sure you know what they are because you underwent two CCOs last year, but I will summarise them again briefly for you. First, within two working days of your release from prison you are to report to the nearest Community Corrections office to where you will be living. We will put the nearest to where your parents' address is, as I assume that because you have been living there that is likely to be your immediate address, but that can be changed before you are released from prison if there is a different address.
72. During the CCO, you are to report to Community Correction officers within two clear working days of it occurring, any change of address of where you are living or of where you are working. You must obey all lawful directions or instructions of Community Corrections officers. During the duration of the order you must not leave Victoria without prior permission of Community Corrections officers.
73. Finally, but most importantly, during the duration of the CCO you must not commit any other offence which could be punished by imprisonment, and that includes the full range of offences for which a term of imprisonment might be imposed, even it would not be likely to be imposed in the particular circumstances.
74. I should warn you that if you fail to comply with any of the terms or the condition of the CCO, including if you commit any further offence during its duration, that would be a breach or contravention of the Order, and you would expect that you could be brought back in front of this court to be dealt with on a charge of contravening the order. Contravening a CCO is, in itself, a criminal offence that carries up to three months' imprisonment. How you would actually be dealt with would depend on all of the circumstances of what had occurred, and how much of the Order had been completed, but the powers of the court include to confirm the Order, to vary it by extending it or adding conditions, or to cancel the Order and resentence you for the original charge. That would be the charge of attempting to pervert the course of justice.
75. I must ask you, do you understand the terms and condition of that order?
76. ACCUSED: Yes.
77. HER HONOUR: Do you agree to comply?
78. ACCUSED: Yes.
79. HER HONOUR: All right. I further state, for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty but been found guilty after a trial of these charges, and if all other circumstances had been the same, which is usually as here, artificial, I would have imposed a total effective sentence of 20 months' imprisonment with a non-parole period of 12 months.
80. I do not think there were any ancillary orders eventually sought. There was no confirmation and nothing sent through to my associate.
81. MR MCCULLOCH: There were ancillary orders sought, Your Honour. They were lodged ahead of the plea.
82. HER HONOUR: Well, they are not in the system as I understand it.
83. MR MCCULLOCH: All right.
84. HER HONOUR: But what were they?
85. MR MCCULLOCH: There was application made for a forfeiture order with respect to the mobile phone that was the subject of the offending.
86. HER HONOUR: Yes.
87. MR MCCULLOCH: A disposal order in relation to the various personal property that did not otherwise hold any value, and there was an application for a forensic procedure.
88. HER HONOUR: All right. You can take a seat for a moment, Mr Christensen.

    Mr Kantor, I have not seen those. Had you considered them?

89. MR KANTOR: I have, Your Honour.
90. HER HONOUR: They were not raised during the hearing.
91. MR KANTOR: I have. The applications are not opposed, Your Honour.
92. HER HONOUR: Any of them?
93. MR KANTOR: No.
94. HER HONOUR: All right. It seems if there is - could I have a look, please? Has anyone got a copy of - - -
95. MR MCCULLOCH: I apologise that I had not - - -
96. HER HONOUR: They are in the system, are they?
97. MR MCCULLOCH: I have brought a hard copy, Your Honour.
98. HER HONOUR: Yes, please.
99. MR MCCULLOCH: If it is convenient to Your Honour's associate I can update those orders with today's particulars and - - -
100. HER HONOUR: I need to sign off on something so that - at this stage.
101. MR MCCULLOCH: Yes, yes. I will - - -
102. HER HONOUR: Do I not? Or I suppose the forfeiture order and the disposal order I do not. The 464ZF I would. Was a sample taken that gets retained? No.
103. MR MCCULLOCH: No.
104. HER HONOUR: It is one you need me to order the taking of.
105. MR MCCULLOCH: That is correct, Your Honour.
106. HER HONOUR: All right. Do you have a draft of that or not?
107. MR MCCULLOCH: I do not have a draft.
108. HER HONOUR: In the circumstances that Mr Christensen will be in custody.
109. MR MCCULLOCH: The draft that was lodged was a custodial - - -
110. HER HONOUR: All right, I do not make - - -
111. MR MCCULLOCH: But I am grateful to my friend. I can hand up this copy.
112. HER HONOUR: All right. My associate says they are somewhere in the system, so if you print that one off I will sign it.
113. MR MCCULLOCH: As Your Honour pleases.
114. HER HONOUR: I want to read it first before I explain it - and say what I need to about it, to Mr Christensen, that is all. No, just print it out as it is, and I will tell him what I am signing. Thank you. They have changed it. It did have (indistinct) yes. All right, Mr Christensen, would you stand again, please, while I explain the order for a forensic sample? Your counsel has probably discussed it with you, but I did not know it was being sought.
115. The application is to take a forensic sample from you, to enable your DNA to be placed on the national database. Although the Crown repeatedly asks for it to be by blood sample, I never make that order, unless there is medical material before me to justify it. I will limit an order in this regard to a scraping from the mouth. That means that it is a swab at the end of a long stick, and often you are asked to take it from yourself, rubbed against the inside of your cheek. It is not painful and should not be intrusive unless you resist.
116. However, I must warn you, that if you resist the taking of that sample, authorised officers can use reasonable force to take it. The reasons I make the order are that it was not opposed, and the seriousness of the circumstances of the offending warrant it. So you can take a seat while I sign that order and the other orders if they are there.
117. HER HONOUR: Sorry, the - the dates - so I do not sign this one. No, no.

     Mr Kantor, could you provide an address for my associate so that that CCO has - - -

118. MR KANTOR: yes, Your Honour.
119. HER HONOUR: I am assuming his parents' address should be the one used at this point in time.
120. MR KANTOR: That is so.
121. HER HONOUR: On the CCO and for the nearest place to report.
122. MR KANTOR: I will just confirm that. It is not the Reservoir address.
123. HER HONOUR: Yes, thank you. Pardon me for one moment, Your Honour.
124. MR KANTOR: Yes, Your Honour, the confirmed address is [REDACTED].
125. HER HONOUR: While I am waiting for the orders to be produced so the CCO can be signed, if family members wanted to approach the dock to speak with Mr Christensen, I will allow that. If you want to be there too that is fine, Mr Kantor, before he is removed from the court.
126. MR KANTOR: I am grateful, thank you.
127. HER HONOUR: Just one more thing before you print it off. Mr Kantor, unless you say or submit I should not, I propose to put a custody note that it is your client's first time in custody.
128. MR KANTOR: Yes, please, thank you.
129. HER HONOUR: Thank you. The CCO I will have brought for counsel just to peruse to check it reflects what I have said, and then I will have my associate take it to Mr Christensen to sign before I do.
130. MR KANTOR: Yes, both counsel agree that it is in the correct form, Your Honour.
131. HER HONOUR: All right. I do not know if you want to accompany my associate.
132. MR KANTOR: I will.
133. HER HONOUR: But she will bring that to Mr Christensen to read and sign.
134. MR KANTOR: Thank you.
135. HER HONOUR: Mr Christensen, you have heard your counsel has checked it but you should also read it yourself and check and you are asked to sign that you agree to comply with it, then I will.
136. MR KANTOR: That has been signed, Your Honour.
137. HER HONOUR: All right, thank you. I will now sign that order. It will be copied so that Mr Christensen has a copy, although - or you can take it to him shortly,

     Mr Kantor.

138. MR KANTOR: Yes, Your Honour, thank you.
139. HER HONOUR: It can be copied and you and the prosecution will be given a copy of course, as well as a copy of the other ancillary orders. Now, I have given the opportunity for family to talk to him. I will now ask for Mr Christensen to be taken into custody and removed from the courtroom, please.

- - -

^[1] This is a pseudonym name.

^[2] This is a pseudonym name.

^[3] DPP v Aydin and Kirsch [2005] VSCA 86; DPP v Josefski [2005] VSCA 265

^[4] DPP v Aydin and Kirsch [2005] VSCA 86 per Calloway JA at [11]

^[5] DPP v Aydin and Kirsch [2005] VSCA 86 per Eames JA at [26]-[28]

^[6] R v Buscema [2011] VSC 206

^[7] R v Healy (unreported, Court of Appeal, 4 August 1997) per Charles JA.

^[8] R v Buscema [2011] VSC 206 per Nettle J; Tognolini v R [2011] VSCA 113; (2011) 32 VR 104

^[9] R v Schroen [2001] VSCA 126

^[10] Smith v R [2014] VSCA 241

^[11] DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85

^[12] Assuming no more than 300 hours would be imposed.