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

CR 20-00721

THE QUEEN		
		
v		
		
MICHAEL TONER		

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JUDGE:	HIS HONOUR JUDGE MURPHY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	24 August 2020	
DATE OF SENTENCE:	24 August 2020 (ex-tempore)	
CASE MAY BE CITED AS:	R v Toner	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1326	

REASONS FOR SENTENCE

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CRIMINAL LAW – PLEA – Contravene family violence intervention order – Attempt to pervert the course of justice – persistent contravention of a family violence intervention order – Midrange of seriousness – Family Violence Protection Act 2008, s 123A(2), s125A – SACSTAT: Higher Courts - Common Law: Attempt to pervert the course of justice (2019) – Carter v The Queen [2020] VSCA 156 considered. 

CRIMINAL LAW – SENTENCE – Parsimony – Early plea – Community interest in rehabilitation – Effect of the COVID-19 pandemic considered – Fork in the road – General deterrence – Denunciation – Relatively youthful offender – Community interest in rehabilitation – Prison lockdown – Stigmatising effect of prison on young offenders – Sentencing Act 1991 s6AAA, s18(1) – Total Effective Sentence – 18 month Community Corrections Order – Boulton v The Queen (2014) 46 VR 308, applied.  

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Ms A. Harold	Ms A. Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Mr A. Halphen	Stary Norton Halphen	

HIS HONOUR:  
1	Michael Toner, you have pleaded guilty to one charge of contravening a family violence intervention order, one charge of attempting to pervert the course of justice and one charge of persistent contravention of a family violence order.  
2	The circumstances of the offending were set out in the Crown opening which was read in open court this morning and which I incorporate by reference.  The offending arose out of the breakdown of a two year relationship with a woman with whom you had had a child in September 2017. You could not accept the breakdown of the relationship.  There was an event in August 2018 that led to the imposition of a family violence intervention order.  That did allow you to communicate with her to make arrangements in relation to the child.  Those arrangements continued apparently amicably until around April 2019, at which time, for no reason that has emerged, the mother declined to continue allowing you to communicate with the child.  
3	It was in those circumstances that the offending occurred in a period of about three weeks in June of last year.  The explanation put, which involved a hundred-odd text messages in relation to the first charge, over a three-day period.  An aggravating feature of that was that you were on a community corrections order at that time, then a further intervention order was imposed on you and was given to you, and then when you were arrested, and placed in custody on 15 June, you then proceeded to ring an acquaintance of yours and asked him to approach the complainant and asked her to withdraw the charges and it was those three or four phone calls that constitute the attempt to pervert the course of justice.  The final charge is the persistent contravention of an intervention order and that involved a number of further messages that you asked to be sent to her via an intermediary in the few days after the 15th.  
The seriousness of the offences
4	The explanation for the offending here was that you were unable, being immature, to accept and manage the breakdown of your relationship and the denial of access to your daughter.  It was in those circumstances in June 2019 that, notwithstanding the intervention order, you then sent the flurry of text messages that led to the second offending and the third offending.  
5	Your counsel sought to characterise the contact in Charge 1 as of lesser seriousness in that there was no evidence of actual fear by the complainant.  On the other hand, as submitted by the learned crown prosecutor, the inference is that she would have sustained fear as a result of this flurry of text messages.  
6	While there is no victim impact statement, however as submitted by the learned prosecutor, the offending would have been a frightening and upsetting experience for the victim who was also, at that point, a new mother with another child.  
7	Turning to the charge of attempting to pervert the course of justice.  This was of a mid-range of seriousness.  I do not accept that it was sophisticated as submitted, however the blatant-ness of your conduct shows your immaturity.  This, however, is a serious offence as evidenced by the maximum penalty and the fact that it does strike at our system of criminal justice.  
8	Charge 3 is of a similar character to Charge 1, although it was effected through the agency of another person.  In relation to both Charges 2 and 3, you involved another person to allow you to breach the order and commit the offence of attempting to pervert. 
9	As indicated in the course of the plea by your counsel, there is an element of immaturity, in that you were attempting, through the third party to attempt to see your daughter by having her mother bring her to court.  This confirms your immaturity in that you were unable to grapple with the consequences of the relationship breakdown.  
10	Overall, the offending represented by the three charges is of a mid-range of seriousness.  As indicated in the course of the plea, in assessing the seriousness of Charge 2, the seriousness of a principal offence is relevant and it is namely the breach of the intervention and that is relevant, and it is of a mid-range of seriousness.  Now overall this was a mid-range of seriousness of offending, the three charges.  
Prior convictions
11	You have admitted a criminal record commencing in the Children's Court when you were aged 17.  The offending includes reckless conduct endangering life, using a carriage service to harass, stalking.  Just before you were aged 20, you were placed on probation for making a threat, failing to answer bail, burglary, theft and dishonesty offences and indecent assault, and also possession of a controlled weapon.  
12	Your first appearance in the adult courts was on 5 February 2018, when you were placed on a community corrections order for 12 months on a number of offences including affray, intentionally causing injury, possessing an implement, trespass and driving offences as well assault and intentionally damaging property. 
13	You were placed on a further community corrections order on 13 June 2018 on charges of criminal damage and theft.  That order remained in place at the time of your offending on Charge 1 here before me.  
14	After you committed these offences you went into custody and on 
24 September, 2019, you were sentenced to 113 days' time served for a number of offences including stalking, damaging property and contravening a family violence order.  You were then placed on an 18 month community corrections order at that time.  
15	That particular sentence is an antecedent and the offending behaviour occurred before the matters that I am dealing with.  It is unfortunate that these matters were not dealt with at the same time, as it is likely that had you been sentenced to a term of imprisonment there would have been significant concurrency at that point.  Your criminal record overall reveals at this point you have failed to fully respond to lenient dispositions.  
Personal circumstances.  
16	Your personal circumstances were set out in your counsel's submission and I incorporate them by reference.  You are the third of four children from an intact marriage.  Your younger brother remains at home.  You, unfortunately, had not lived at home since you were aged 15.  You grew up in the Noble Park area and commenced experimenting with cannabis at age 13, and then regularly from age 15.  Your drug use led to poor attendance at school and you stopped going to school during Year 10.  You then began using cannabis on a daily basis and became homeless leading to criminality and appearances in the Children's Court. 
17	When you were homeless, you met the complainant.  She already had a young child and was a couple of years older than you.  The two of you lived together in various unsatisfactory temporary accommodation, and with her then child being in the care of her auntie.  She then bore another child on 13 May 2017.  The three of you lived together, but the relationship broke down, as I indicated, in August 2018.  This led to the intervention order and the offences for which you were ultimately dealt with in September last year. 
18	Your employment record is mixed, although you have had a number of short term jobs since late 2017 as set out in the submission.  Significantly, since you were released from custody in September last year, you have been working relatively regularly as a tiler.  That is confirmed by your mother and it is also relevant that you failed to make a number of appointments under your CCO because you were too busy working.  
19	Whilst being employed is an important consideration pointing to your prospects of rehabilitation, your failure to respond fully to the CCO which you were on and you are on, is an indication of your immaturity. 
Sentencing submissions
20	Your counsel submitted that a community corrections order was the appropriate disposition here.  The learned Crown prosecutor submitted that either a straight sentence or a combination sentence was within range.  Your counsel provided sentencing statistics indicating that a significant proportion of offender's sentenced for this offence, the offence of attempt to pervert the course of justice, have been sentenced to community corrections orders in the last four years.  He also provided a list of cases where either a community corrections order was imposed, or a very short sentences of imprisonment in combination were imposed.
21	I have considered those cases, but as has been stated in a number of cases, any particular sentence is not a precedent.  However, I must have regard to comparable cases in sentencing.  The Crown referred to a couple of cases, including Carter, which indicate that the Court of Appeal regards this offence as very serious.  
Consideration
22	As discussed with your counsel in the course of the plea, considerations of general deterrence and denunciation are very important.  A message has to be sent to the community that there is to be no interference with the course of justice.  Further, intervention orders are to be complied with.  
23	Following the breakdown of relationships, women are entitled to the protection of those orders and are not to be harassed by text messages and phone calls in breach of the orders.  The Family Court system is the appropriate venue for addressing issues of access to young children.  It appears that you had an amicable arrangement wherein you were complying with the intervention order until April 2019 when the complainant refused you access to your daughter and that this then led to the offending over a narrow period in June last year.  
24	Your counsel submitted, however, that in the particular circumstances of this case, all sentencing requirements could be achieved by a community corrections order.  He reminded the Court of the consideration of that disposition in Boulton and the principle of parsimony.  The question is ultimately, whether, in this particular case, applying those comments in Boulton and the submissions of the prosecution, that is an appropriate disposition.  
25	Your counsel emphasised your relative youth.   You are now aged 24 and you will turn 25 in October this year.  As the learned Crown prosecutor emphasised however, considerations of youth play a lesser part as the seriousness of the offending rises.  Here, she emphasised the seriousness of the offending, accepting that, however she conceded that youth still has a part to play in sentencing. 
26	Your counsel emphasised the interests of the community in your rehabilitation.  He put that it is in the interests of the community that you put this offending behind you, accept the ending of the relationship and move on to being a productive member of the community.   You have now been on a community corrections order for the last 11 months and you have not reoffended.  
27	The Judicial Monitoring report indicates that your response has been mixed.  You have a considerable distance to go.   
28	The Community Corrections assessment reports indicate that you are not fully aware of the impact of family violence on the victims, however, the assessment report indicates that you do have positive prospects should you reinvigorate your commitment to the CCO compliance.  
29	In terms of your future prospects for rehabilitation, significantly you have returned to living with your parents for the first time since you were aged 15, and thus have a degree of stability that you did not have previously.  Your mother, who has been supporting you on the plea, has provided a letter indicating that in her opinion you have come to realise that you need to move forward and you have done that by seeking employment and addressing your mental health.  You have been working in casual employment in roof tiling since your release from prison in September last year.  
30	In his plea, your counsel submitted that you were much at a fork in the road in your life.  I agree with that.  Your counsel also emphasised the difficulties in sentencing in the COVID-19 environment.  The community is presently in a state of lockdown, the prison authorities have a regime of 14 days quarantine for new intake.  In addition, group programs are very limited, if not suspended, visits are suspended and movements around the prison are restricted and the prisoners face anxiety and the risk of contracting the virus.  You may be at an elevated risk of contracting the virus while in prison.  
31	All these matters are well known and it is accepted that the prison authorities are doing all they can to ameliorate them.  They do mean, however, that imprisonment as a sanction is overall more onerous than it was in the past.  Notwithstanding the actions of the authorities I accept that the rehabilitative programs that might otherwise be available are more limited in this present environment.  
32	The COVID-19 situation presents a significant challenge for sentencing judges.  The wider economic impact of the pandemic is well known.  It is likely to blight the employment prospects of many of the younger generation.  
33	Sentences of imprisonment are designed to further the ends of general deterrence, denunciation and specific deterrence.  In some cases, they can advance the interests of the community in rehabilitation. That latter consideration is very much lessened in the present environment.  A sentence of imprisonment also has a significant stigmatising impact on individuals, particularly younger individuals with poor educational achievements and a criminal record.  You are very much in that category.  
34	As your counsel submitted, you are responding under the current CCO although in a patchy way.  You are also in employment.  According to your mother, you are looking to your future.  The CCO assessment also indicates that you have learnt from your period of imprisonment last year and recognise the obligations of a CCO.  
35	After anxious consideration, I have reached the conclusion that it is in the community interest that your rehabilitation in the present environment would be most advanced by a community corrections order.  This is notwithstanding the seriousness of the offending here.  You should be aware that were these normal times you would be sentenced to a term of imprisonment.   
Sentence
36	You should further be aware that in the event that you fail to comply with the CCO then absent very special circumstances, you face a real prospect upon any re-sentence upon breach, of a sentence of imprisonment.  The ball is very much in your court.  
37	In order to enhance your compliance with the proposed order, I am proposing to order that you be the subject of judicial monitoring so that I can take a personal interest in your progress.  
38	I am further indicating in these remarks that the Office of Corrections can bring you back upon short notice to me in the event that there's non-compliance. I have arranged, and I have shown your counsel, the terms of the proposed community corrections order and I note you have agreed to it but I need to remind you of it.  It is an 18 month community corrections order as an aggregate sentence.  
39	The terms of it are the mandatory terms, which I know Mr Halphen will have explained to you and I will ask him to do it again when we adjourn.  But on are you, on a good behaviour bond effectively of the next 18 months.  So if you commit another offence in the next 18 months, that of itself breaches the community corrections order, an offence carrying a term of imprisonment.
40	A breach itself carries a three month sentence then puts you at risk of a resentence on these offences.  You have got to comply with any directions of the Office of Corrections, report within two clear working days, which means contacting them.  Advising them of changes of addresses, being under supervision.  I am also directing that you perform 125 hours' community work over the 18 month period.  Be under supervision.  You undergo assessment and treatment for drug abuse or dependency as directed.  You have already crashed out of one drug course.  So they will consider whether putting you into another drug rehabilitation course.  Treatment and assessment for alcohol abuse or dependency as directed.  
41	You have not provided them with a community mental health plan that you promised them in the previous order and you will note that the Health Minister announced just literally last week that you can get 20 bulk billed psychological consultations under mental health plans.  It used to be 10, it is now 20.  So that is virtually one a fortnight for the next 10 months.  That is what you need to address your anxiety and address your mental health problems and then if the Community Corrections people send you to men's behaviour change program, you can undertake that as well, and that might also involve a parenting plan or some sort of plan to allow you to get back into seeing this child because children need a father in their life.  A male.  Even if he has not got custody of them.  Girls, there is good authority, if they do not have a father figure, when they get older, they get into risky behaviour.  Early sexual behaviour.  Now that is a long way off here but that is a consequence of men, fathers, not being involved in their children's lives.  
42	So this CCO is an opportunity for you to address all those issues under supervision, including under my monitoring, do you understand all that?
43	OFFENDER:  Yes, I do, thank you. 
44	HIS HONOUR:  Madam Prosecutor, do I need to declare the two days that he's served because I am not sentencing him to a term of imprisonment. 
45	MR HALPHEN:  It is a matter for Your Honour.
46	MS HAROLD:  Yes, I agree with my learned friend.  The only benefit I suppose would be that if for some reason, we are back on a breach, if Your Honour declares it, then Your Honour would be entitled to take that into account of course on a resentencing, in future of course if it was to happen.
47	HIS HONOUR:  All right.  Well I will include in the indent that I declare of two days of pre-sentence detention and I also declare that had you not pleaded guilty, I would have imposed a total effective sentence of 18 months' imprisonment with a non-parole period of 12 months. 
48	I have taken into account all the submissions made by your counsel, including the early plea of guilty.  It has got a utilitarian benefit in general and specifically, in the COVID environment.
49	Are there any other matters, Madam Prosecutor?
50	MS HAROLD:  No, Your Honour. 
51	HIS HONOUR:  All right.  I want to thank you for your assistance, Madam Prosecutor, and Mr Halphen.  I will have these reasons reduced and settled in the next two or three days and I will provide them to the parties and in the meantime, Mr Halphen will explain again the terms and ensure that you check in with the Dandenong Community Corrections people within two business days and then they will induct you into this course.  You have got 125 hours of community work to do but if you do these other courses, then that clocks against the 125 hours but you might be working as a roof tiler, they will make arrangements for you and as it is made clear by the Office of Corrections, you are putting your work ahead of your obligations under the current community corrections order and I am not going to tolerate it under my community corrections order.  
52	So when they say ‘you ring me up at 4 o'clock on 4 September, where we can have a quiet chat’, you are not to leave your phone in the car or working up in the middle of a roof or something like that, you have got to make that arrangement and do not tell me you forget the appointments because any mobile phone that anyone owns these days have got alarms in them.  It is not rocket science to put all these alarms in.  The first one you want to put in, apart from turning up to the Office of Corrections in the next 48 hours, you put in 9 December 2020 for a judicial monitoring session.  It might not be in this Court, I might put you on the video but I am going to be here on that date and I am going to have a report from the Dandenong people to see how you are going.  So put that into your alarm and just get into the habit of putting it into your alarm and then telling your mother so that she might be able to remind you.  She is probably gone from the video now but she is putting up with you.  Stick with your parents and you are getting older, you are nearly 25 now, it is time to grow up.  
53	You have fathered one child but you need to move on, get a job, keep your job, start to put some money into the community and put aside this period of crime  and homelessness that started in the Children's Court, and start to become a productive member of the community. You have now got a serious rap sheet and if you breach this community corrections order, or even if you do not breach it and then in 18 months' time you commit more offences, you will be going to gaol, do you understand that?  That includes driving type offences, because you have got a few of those on your record as well. 
54	The other thing to remember, and this is your opportunity, is you are at risk in the labour market, having not finished Year 10.  With the labour market crashing because by COVID, people like you have really got to start to pack your CV by getting some training courses, find a TAFE course that teaches you how to be a qualified roof tiler so that you can get your qualifications, because it is going to be a ferocious job market.  It is a ferocious job market out there for anyone under 25 and indeed over 25, but even more so, and so you have got to use this opportunity to stick with the job you have got and stay in the workforce. That was a considerable factor raised, that it was not worth the effect on the community of me throwing you into gaol for six months and then you come out.  Leaving aside the criminogenic relations you might get out there in Barwon, you would then also be out of the workforce.  It is that continuity in the workforce with an employer is a very important factor in the current fractured labour market.  That has been a major factor that I have considered and therefore have weighed in your benefit in this sentencing disposition over the opposition of the learned Crown prosecutor. 
55	I do not want you to let me down or let the community down. 
56	All right, that is all I want to say.  Thank you, Ms Harold and Mr Halphen.
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