IN THE COUNTY COURT OF VICTORIA 
AT MELBOURNE
CRIMINAL JURISDICTION
	Revised
Not Restricted
Suitable for Publication	

CR 19-01960
THE QUEEN 		
		
v		
		
COREY PRICE		

---

JUDGE:	HIS HONOUR JUDGE MURPHY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	18 March 2020, 6 May 2020 	
DATE OF SENTENCE:	11 May 2020	
CASE MAY BE CITED AS:	R v Price	
MEDIUM NEUTRAL CITATION:	[2020] VCC 587	

REASONS FOR SENTENCE
---

CRIMINAL LAW – PLEA – Attempt to pervert the course of justice – Significant victim impact – Inherently serious offence – Offence against the justice system – Offender suffering from multiple interacting and compounding disadvantages – Bugmy Considerations –  Offender suffering mental retardation –  Relevance of mental retardation – Relevance of availability of rehabilitative treatment – Disability support services – Guarded prospects of rehabilitation – Connexion between mental conditions and offending – Verdins Principles – More onerous period in custody – Reduced moral culpability – Some evidence of remorse and insight – Fork in the road case – Crimes Act 1951 s320 – DPP v Price [2012] VCC 273 (unreported) –  DPP v Hasenkamp (a pseudonym) [2016] VCC 688 – DPP v Haywood [2016] VCC 123, considered.

CRIMINAL LAW – SENTECE – Early plea – Total effective (State) Sentence – 218 days imprisonment – Reckoned as time served – Sentencing Act 1991 s6AAA – R v Verdins (2007) 16 VR 269 – Bugmy v The Queen (2013) 249 CLR 571 – Muldrock v The Queen (2011) 244 CLR 120, applied.     

---

APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr P. Teo	Ms A Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Mr A. Bates	Bayside Solicitors	

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses

HIS HONOUR:
1	Corey Price, you pleaded guilty to one charge of attempting to pervert the course of justice. Maximum penalty 25 years' imprisonment.
2	The circumstances of the offence were set out in the prosecution opening which was read in open court on the first day of the plea and I incorporate that by reference.
3	In essence, you were living at an address in Healesville with Ms Doe and her partner, Mr Doe and their children.  You were a border at that house, you had been there for a couple of weeks. There was an argument between you and Ms Doe after she believed you were using drugs in her house around her children.
4	You got angry, punched holes in the wall of the hallway and then grabbed her by the throat and punched her to the head and threw her to the ground and told her, 'Don't call the cops you fucking dog', before you left the address.
5	She sustained a cut lip and abrasions to her upper back as the result of the assault.
6	After you left the address you attended at the Healesville Interchurch Community Care Centre where you were observed to be in an upset state and you were shouting. You then rang your mother and a staff member subsequently called the police.  You were observed by one staff member to have a claw hammer concealed in your pants, although you were not charged in relation to that.  You were then arrested by the police and placed in gaol.
7	The following day at about 10.34am when you were in the Melbourne Assessment Prison (‘MAP’) you rang your mother, Ms Susan Richardson. You were told at the start of that call that the call was being recorded. You proceeded to discuss with her, your background, moving down to Rosebud and your childhood being over:
'My childhood ended when we left Healesville and all I had left and now she's going to go around town telling everyone about this'.
8	And you then said,
'I need you to speak to Jarrod [who's your older brother] for me to have her not come to court because I'm going to beat this.  I'm going to beat it in court.  Okay, Jarrod needs to go and speak to her'.
9	Your mother was equivocal in responding.  You repeated to her you needed to get her to retract the statement and the call goes on.  Subsequently your mother attempted to call Ms Doe, but the call was unanswered. She has not been charged. Then your brother, Mr Richardson, proceeded on a number of occasions to attend the address of Ms Doe and phone her a number of times. Subsequently he got her to go to the police and retract her statement.
10	You rang your brother on 15 May, which is about a week after you went into custody. Again, this call was recorded and he indicated the actions that he had been taking. You just responded with affirmative statements without actually ever calling him to call off the conduct that you had set in train by the first call to your mother. As I indicated, subsequently Ms Doe did go to the police seeking to withdraw her charge. You were then charged with this offence.
11	You remained mute when you gave a record of interview and you were dealt with for the assault on Ms Doe and the damaging property and the subsequently you indicated you would plead guilty to this offence on 4 July at a committal mention and the matter came up to court.
12	So on 26 June you were sentenced to five months' imprisonment for the assault on Ms Doe and the criminal damage and other charges and some pre-sentence detention was declared.
13	So now the matter came before this Court for plea last week and it was adjourned in order to allow Ms Doe to file a victim impact statement indicating the impact of your specific offending on her in relation to the charge of attempting to pervert the course of justice.
Seriousness of the offence.
14	On the plea it was not in dispute that this is an inherently serious offence. This offence strikes at the system of justice. In order to assess the gravity of this particular offence it is relevant to take into account the overall seriousness of the principal offences, which was the assault on Ms Doe.  On your behalf it was submitted that the offending was dealt with in the Magistrates' Court and thus this placed a characterisation on the principal offending as less serious than, for example, where the principal offence was an indictable offence.
15	Notwithstanding this, the seriousness of the principal offence is a relevant consideration and the complainant in that matter was entitled to have your conduct, in assaulting her, brought to trial without your attempt to prevent it.
16	In assessing the seriousness of your conduct, your counsel emphasised that it was a single spontaneous act. Namely the call to your mother the next day while you were in the MAP that led to your brother taking the action that has now given rise to such an this impact on the complainant.  But you must have known that your brother would act persistently to have the complainant withdraw her complaint, which is exactly what he did. Thus although your conduct only involved a single phone call, it was readily foreseeable that as a result of that phone call to your mother, unless you took action to pull your brother pull back from his conduct, he would persist.
17	Relevant to that, in the subsequent call with your brother on the 15th you did not seek to request that he desist from his conduct. In your favour, however, you did indicate in that call that you are sorry for what you had done.
18	Given the actions of your brother, subsequent to your call to your mother, there is a significant degree of culpability in your conduct notwithstanding that conduct was only the single phone call.
19	At the same time, it is relevant, that your personal conduct involved only the single phone spontaneously in a sense when you have just been put back in custody after a period in the community. I was not, as has occurred in a number of cases, persisted action to achieve the end sought. This distinguishes this particular case from others that have come before this Court.
Victim impact.
20	I have been provided with a victim impact statement which indicates that your offending has had a significant impact on the complainant, Ms Doe, in this matter.  Although she refers to your co-offender, your brother, as the person who she fears you must be held to be, to a degree, responsible for his conduct as it was your phone call to your mother that set the ball rolling.
21	The complainant says she has had to move address and she cannot have children with her when she is alone.  She gets panic attacks, anxiety attacks and has major issues with being at home alone on a daily basis, especially at night.
22	Thus the conduct of your brother, initiated by you, and which constitutes the essence of this offence, has had a major impact on her which I must take into account in sentencing you.
23	As discussed during the plea hearing, I accept that your brother is contesting the conduct referred to by the complainant.  Notwithstanding this, it is clear that the attempts by your brother to have her withdraw the charges has had a significant impact on her for which you must be held responsible.  I take into account her victim impact statement in sentencing you.
Prior convictions.  
24	I now turn to your prior convictions, they are extensive.  Your counsel emphasised on the plea that you do not have any prior convictions for the offence of attempting to pervert the course of justice.
25	You will turn 28 in August.  You have prior convictions in the Children's Court commencing when you were aged 13.  In the Magistrates' Court your prior convictions commence in May 2011 when your aged 18 and were placed on a Community Based Order (‘CBO’) for burglary, use of the drug dependence, criminal damage, unlawful assault and possessing a drug of dependence.  You breached that CBO and was sentenced to six months in a Youth Training Centre.  
26	On 1 February 2012 you were sentenced to 42 days in a Youth Training Centre for recklessly causing injury and on 9 March 2012 to 12 months in a Youth Justice Centre for armed robbery.  That was a sentence imposed by Her Honour Judge Douglas.  On 26 September 2012 you were sentenced to two months in prison, suspended for six months for threat to inflict serious injury and that period of suspension was subsequently extended.
27	Since that time you have significant prior convictions for possessing methylamphetamine, recklessly causing injury, contravening a family violence order, intentionally causing injury, theft from a shop.  I have not detailed them all.  You were dealt with under the Assessment and Referral Court list and you were to be assisted by a person from disability services.  On 21 April 2016 you were placed in a Community Corrections Order with a requirement that you undergo assessment and treatment for offences including handling stolen goods, recklessly causing injury, burglary, unlawful assault, theft and other driving matters.  You subsequently breached that order but no further action was taken.  On 16 May 2017 on driving offences you were convicted and the matters were adjourned until 16 May 2018.  
28	On 12 January 2018 for unlicensed driving and driving whilst disqualified you were sentenced to three months' imprisonment.  You were also sentenced for contravening a family violence order and criminal damage.  On 15 May 2018 on charges of unlawful assault, assaulting emergency worker, intensely damaging property recklessly causing injury and other offences you were sentenced to six months' imprisonment and some pre-trial detention was declared. It was subsequent to your release from this sentence that in May last year you committed these offences or this particular offence.
29	Now, it is clear from your significant prior criminal record that you been unable to comply with community dispositions.  It is clear also from the references to drug offending that you have had problems with drugs and you have been sought to be channelled into dispositions that have sought to address your disabilities, but have been unsuccessful.  Also relevant is that on the file is an assessment dated 13 December 2019 indicating that you are suitable for reference to the CISP bail program.
30	It is significant that you have been on a disability support pension since your teenage years.
31	In recent times as indicated in the CISP report you have now been engaged in the NDIS scheme and significant assistance is available to you upon your release.  And this was confirmed by your counsel on the plea and you confirmed it in your own evidence you gave to me this morning.
Matters in mitigation 
32	I turn now to your personal circumstances which were set out in a comprehensive plea submission on your behalf, which I incorporate by reference.
33	As indicated in that submission and indeed in the reports of Mr Ball and Dr Borg, you have had a difficult upbringing and have six brothers and one sister.  Your parents split up when you were aged two or three and you had early learning difficulties and a delayed developmental history.  Your father had difficulty dealing with you when you were placed in his custody after your mother could not deal with you and you had multiple assessments as a child and there was the intervention of the DHHS.  Your formal schooling came to an end very early and you ceased going to school when you were aged 12.
34	You have no occupational qualifications and you have had periods of homelessness and little periods of employment.
35	As indicated in the medical reports referred to by Her Honour Judge Douglas and also by Dr Borg you were introduced to alcohol and drugs at an early age and have been the subject of influence by older peers.  It also appears that you have been the subject of sexual abuse.
36	Your counsel, Mr Bates, used the material from Dr Borg and from Judge Douglas as to your background in support of his submission that considerations of both the cases of Bugmy and Muldrock are relevant to sentencing you.  This was on the basis that you have long-standing difficulties in your upbringing including negative peers, a lack of positive mentors, early introduction to the use of drugs and alcohol, and into criminal conduct. In addition to that there have been sexual abuse and homelessness.
37	Your counsel sought to lead from that background material that those matters should be taken into account in your favour.  I am satisfied having regard to the submissions made that it is appropriate to do so and exercise leniency in your favour.
Other matters in mitigation.
38	I have taken into account your plea of guilty for this charge.  It was an early plea.  It is significant in that it has obviated the need for a committal and a criminal trial and this is significant as a matter in this current environment.  And is also relevant given the impact on the complainant in the matter.
39	The plea is also some indication of remorse and in the course of the plea hearing last week you did indicate you were remorseful for your actions and I take that into account.  It does appear you have some insight into your conduct.
Moral Culpability.  
40	A key issue on the plea was whether by reason of your impaired mental functioning then under the principles of Verdins, this calls for a reduction in your moral culpability.  In evidence was a report from a neuropsychologist Dr Borg indicating that you suffer from a number of psychological conditions including pervasive developmental disorder, ADHD, mild autism, Asperger's, acquired brain injury, complex PTSD, and depression and anxiety.
41	In his submissions, your counsel submitted that there is a connection between your offending and your mental condition such that there should be a reduction in your moral culpability.  The learned Crown prosecutor would not accept this and submitted that the evidence just does not sustain any such connection.  He submitted that there was no evidence in support of the link between your offending and your mental impairment.  In contrast to the sentence of 
Judge Douglas where there was such medical opinion, he submitted that this opinion did not exist in this case.

Consideration.
42	The cases require a realistic connection between any mental condition and the offending.
43	In this case it is a matter of inference as to whether your mental condition at the time was such that your moral culpability is reduced.  In giving you the benefit of the doubt on this issue, I take into account that as far back as March 2012 when you were sentenced by Her Honour Judge Douglas for armed robbery she found that the principles of Verdins led to a reduction in moral culpability and general and specific deterrence.  At that stage you were aged 19 and she relied on the opinion of Dr Walton who at that stage was unable to suggest any relevant treatment.
44	A psychologist who had examined you some years earlier described you has a very damaged and vulnerable young man who suffers from multiple interacting and compounding disadvantages.
45	The report of Dr Borg dated 5 February 2015 notes that you had long-standing problems with emotional regulation and impulse control.  She notes that you were assessed as being of borderline to low average intellectual functioning.  She notes you appear to be quite immature in your reactions at times and further she suggested you have difficulties in discrimination and a degree of executive dysfunction and demonstrated very poor planning and you were slow in your ability to think and implement effective strategies to work through problems.  At times of crisis, she opined, that you were likely to revert back to your developmental age of a five or six-year-old.
46	For earlier offending, you were examined by a psychologist, Mr Ball, and his report dated 26 April 2018. He says,
'Overall, Mr Price impressed me as a man with impairment to his capacity to exercise generally good judgement.  He presents as functionally illiterate, innumerate and low functioning individual with a substantial history of substance dependence.  He has a documented ABI and impressed me as an unreliable historian'.
47	And over the page he then said: - and I incorporate the paragraph stating,
'Mr Price also satisfied DSM-5 diagnostic criteria for antisocial personality disorder'. I consider this condition to be severe. He also suffers significant schizoid personality features. There is a clear connection between his personality deficits, drug abuse and acquired brain injury and his past and present offending. These conditions have affected his judgement, ability to plan and execute positive self-sustaining behaviour and general psychological functioning. I consider that a neurological review or neuropsychological assessment is warranted to assess the full extent of disability and provide management strategies. 
48	He noted that there was,
'A clear connection between your personality deficits, drug abuse and acquire brain injury and your past and present offending.  These conditions have affected his judgement, ability to plan and execute positive 
self-sustaining behaviour and general psychological functioning'.
49	This report was prepared in relation to different offending but the sentiments expressed had a resonance in your behaviour in relation to this offending.
50	In evidence was a report from Dr Grech who noted your history of pervasive developmental disorder, ADHD, mild autism, Asperger's, and acquired brain injury and complex PTSD.  He noted that you were at risk in terms of meeting the criteria for anxiety or depressive disorder.
51	Now your counsel put that as you have Asperger's you require a stable environment and lifestyle. However, you were as a result of your drug use ejected from your accommodation, this resulted in you being upset, which is in the statement from the witness from when you were at the Healesville Centre.   You were seen to be very upset there when you were arrested. It was the following day that you made the call.  In the call to your mother you refer to your earlier disrupted upbringing and the move from Healesville to Rosebud, which disturbed your education. The report from Dr Borg indicates that when you were down in Rosebud you did not fit into the school and that is when you dropped out of education.
52	Now from that material your counsel put that as a reasonable inference, that it was a continuing course of conduct from the assault on the complainant to the phone call to your mother the next day and you were in a similar state when you made - of upset from the day before when you made the phone call and thus gave rise to the lack of impulse control, the factors giving rise to lack of impulse control were operative.  And that goes to reduce your moral culpability.
53	Now, I accept his submission that your damaged background and dysfunctional upbringing and your lower level of intellectual functioning, in circumstances where you had lapsed into drug use leading to the incident with the complainant and then your arrest and incarceration did result in a loss of control and you were not in a position to exercise proper judgement and it was in this state that you did make the phone call the subject of the offending.
54	Thus like Her Honour Judge Douglas I find it appropriate to reduce your moral culpability for this offence, and to give less weight to issues of general deterrence and specific deterrence.
55	Considerations of protection of the community are still relevant, but I see these as best being addressed by your engagement with the NDIS.
56	I was referred to two comparable cases, that may provide some evidence of current sentencing practices.   Each of the cases is distinguishable but I have taken them into account as something of a yardstick. They do not constitute a precedent.
Purposes of sentencing.
57	In sentencing you I am required to give effect to the need to punish you for your offending to deter others and deter you, to denounce your contact and to seek to rehabilitate you into the community.  Resolving these incommensurable factors is always difficult, particularly in a case like yours given your disadvantaged background as canvassed in the plea and in the written submission by your counsel.
58	In sentencing you I give significant weight to a number of matters.  First, considerations of totality are relevant in that your offending here can be seen as a course of conduct commencing with your assault on the complainant and then the following day making a phone call that gives rise to the offence.  This was all in circumstances where you had been in the community for some months after a period in custody in the first half of 2018.  You had relapsed into drug use, and lost your accommodation and were in a state of distress having been thrown back into prison.
59	Had all the charges been dealt with at the one time, then there would have been a significant measure of concurrency on the sentences.
60	Next, you have now been in custody for just over a year, which is by far the longest period of imprisonment, and notwithstanding your age, it is a significant sentence for someone given your difficult background.
61	Given your background you have also been the subject of bullying while in prison.  Thus, while imprisonment will be more onerous on you than others who are less vulnerable. And you have also been bullied in your current period of incarceration, on what has been put by your counsel and I accept that.
62	In addition, in recent weeks you have been under the shadow of the current pandemic.  This does make prison more onerous for you.  In addition, visits have been suspended in recent times.  Thus, part of your period of incarceration has been more onerous than it otherwise would be.  I take that into account in your favour.

Prospects of rehabilitation.
63	In relation to your prospects of rehabilitation, which I would assess as at best guarded, relevant is that upon release you will be eligible, for the first time, for assistance under the National Disability Insurance Scheme (NDIS).
64	Given your intellectual difficulties, your lack of any significant formal education, your long-standing behavioural problems and intellectual impairment this is a real opportunity for you to obtain the assistance that you have obviously required for many years.
65	In the course of the plea this morning you made it clear that you had been attempting to access the NDIS in the past but you had been unsuccessful.  Given the references in your prior convictions and sentences to various programs it is clear that there has been unsuccessful attempts in the past to address your long-standing problems.
66	The report of Dr Grech, who assessed you over the phone, indicates that you are willing to undertake relevant programs.  The NDIS has a program available to you upon your release.
67	The central thrust of your counsel's submission to the court was for your immediate release.  This was on the basis that you have now been in custody for a total of 371 days, of which 218 days counts as presentence detention on this charge.  
68	Having weighed the submissions of your counsel, and the competing submissions by the Crown prosecutor, I see your position as essentially one of being at a fork in the road in your life.  In an earlier report Dr Walton referred to the prospect that your offending behaviour would lessen or could lessen as you grew older.  You are now approaching a time when you may mature. Notwithstanding the long standing issues you have had and your lack of education, you may be able to lead a law abiding life.  You have the assistance of your mother and accommodation with your aunt in the country.  You also have the NDIS case worker to engage with you as soon as you are released.  In addition to that, you are to be engaged with another post-sentence release program called 'Restart'.
69	You have indicated that you are in a position to accept the NDIS efforts to address your underlying problems.  You have undergone a significant period of imprisonment, which as I have indicated, part of which has been more onerous than in normal circumstances.  And for the first time the NDIS will be in a position to give you a tailored package to address your longstanding issues, including one on one counselling as set out in the CISP report.
Sentence
70	So weighing all the competing considerations, I am prepared to accede to the submission by your counsel and the sentence I impose on you is a sentence of 218 days' imprisonment for the offence of attempting to pervert the course of justice and I declare that you have served 218 days pre-sentence.
71	I declare that had you not pleaded guilty I would have imposed a sentence of 10 months' imprisonment.
72	Mr Prosecutor, any other matters?
73	MR TEO:  Don't believe so, Your Honour.
74	HIS HONOUR:  Any other matters I did not address, Mr Bates?
75	MR BATES:  No, Your Honour.
76	HIS HONOUR:  So, Mr Price, you should be able to be in a position to be released from custody if you have not got any outstanding matters against you as soon as the paperwork is provided to the prison and then the NDIS worker's waiting for you.  Go up to your aunty, up in Talbot, get the bus or something and you have got such a track record of offending that if you get back into drugs, you get back into offending you are going to be doing longer and longer time.  So you have had 12 months, which is the longest time you have had.  But now with the NDIS, it is one on one, lots of resources, lots of opportunities; this is your big chance and I encourage you to take it.
77	I want to thank Mr Bates for his comprehensive submission on your behalf, which I accepted.  I also want to thank Mr Teo for his comprehensive submissions on behalf of the Crown.  
78	Adjourn the court until 9.30 tomorrow.
‑ ‑ ‑