Church v R

[2012] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Church v R [2012] NSWCCA 149

Hearing dates:

18 June 2012

Decision date:

10 July 2012

Before:

McClellan CJ at CL at [1]
Price J at [2]
Button J at [3]

Decision:

(1)Leave to appeal granted.

(2)Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - perverting the course of justice by omission - no error in forming opinion as to the sentence that ought to have been imposed - no error in taking into account sentence that ought to have been imposed - no failure to take into account extra-curial punishment - no error in finding specific deterrence was a significant consideration - sentence not manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

House v R [1936] HCA 40; (1936) 55 CLR 499
Kenny v R [2010] NSWCCA 6
Markarian v R [2005] HCA 25; (2005) 228 CLR 257
R v Allpass (1993) 72 A Crim R 561
R v Einfeld [2010] NSWCCA 87; (2010) 200 A Crim R 1
R v Nguyen [2004] NSWCCA 332; (2004) 149 A Crim R 343

Category:

Principal judgment

Parties:

Leanne Tracey Church (applicant)
Regina (respondent)

Representation:

Counsel:
R Burgess (applicant)
R Herps (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s):

2010/91962

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-10-14 00:00:00

Before:

Colefax DCJ

File Number(s):

2010/91962

Judgment

1. McCLELLAN CJ AT CL: I agree with Button J.

1. PRICE J: I agree with Button J.

1. BUTTON J:

Introduction

1. On 14 October 2011 in the District Court at Parramatta, Judge Colefax SC convicted Leanne Tracey Church ("the applicant") of one count of making an omission intending to pervert the course of justice. The offence was brought pursuant to s 319 of the Crimes Act 1900, and carries a maximum penalty of imprisonment for 14 years and no standard non-parole period. His Honour proceeded to sentence the applicant to imprisonment for a total term of 2 years 8 months, with a non-parole period of 1 year 4 months. Clearly enough, special circumstances were found that permitted a variation of the statutory ratio; if that had not occurred, the non-parole period would have been imprisonment for 2 years. The applicant seeks leave to appeal to this Court with regard to that sentence.

Chronology

1. On 5 April 2006, a dispute took place between the daughter of the applicant and another woman ("the victim") at the Royal Hotel in Hill End in the Central West of New South Wales. Violence ensued, and the victim was left with swelling and bruising to much of her body. The applicant joined in the attack by her daughter on the victim. The applicant was charged with assault occasioning actual bodily harm.

1. In the months after that, the applicant led people in Hill End to believe that she was suffering from cancer. That was not true. The pretence was not limited to words. It included shaving her head, wearing a bandana, and seeming to attend a clinic in order to receive treatment for the illness.

1. The applicant pleaded not guilty to the charge of assault occasioning actual bodily harm. A hearing of that charge was conducted before Magistrate Hodgson in Mudgee Local Court. At the end of the hearing, on 19 October 2006, the Magistrate found the offence proven against the applicant. Turning to sentence, the Magistrate indicated that a gaol sentence was a distinct possibility, and ordered a pre-sentence report. The solicitor then appearing for the applicant immediately indicated that the applicant was suffering from cancer, and submitted that the matter could be dealt with there and then. The applicant, who was present, said and did nothing to contradict that assertion made by her solicitor about her medical condition. The Magistrate agreed to adopt that course and placed the applicant on a s 9 bond for 3 years. The Magistrate then said "the only thing stopping you from going to gaol is because of your medical condition."

1. On 10 November 2006, a fundraiser was held by the people of Hill End in order to help the applicant pay her purported medical expenses. The applicant took receipt of about $200 that was raised.

1. Subsequently, a suspicion arose that the applicant had permitted the Magistrate to be misled about her medical condition.

1. In May 2009, Police offered the applicant an opportunity to engage in an ERISP. She exercised her right to silence.

1. On 6 April 2010, a Court Attendance Notice issued for the public justice offence under consideration. On 20 September 2010 the matter was committed for trial. On 30 May 2011 the trial was listed to commence. On 31 May 2011, the applicant pleaded guilty in the District Court. On 24 August 2011, when the proceedings on sentence were part-heard, her bail was revoked.

Objective features

1. Contrary to part of the evidence of the applicant in the District Court, and what she had told a psychiatrist according to a report that was tendered on her behalf, the sentencing judge said in the remarks on sentence:

"I am satisfied beyond reasonable doubt that that [that is, the spreading of the story, the shaving of the head, and the regular wearing of the bandana] was not done as a result of some need for attention or to be loved, as is suggested in a psychologist's report (the psychologist's report being based exclusively on the assertions of the offender). I am satisfied beyond reasonable doubt that it was done in anticipation of a conviction."

1. With regard to the proceedings before the Magistrate, the sentencing Judge said:

"In assessing the true nature of this offender's criminality, it is appropriate I form an opinion as to what sentence ought to have been imposed on the offender by the Local Court. Having regard to the jurisdictional limit of that court and the objective seriousness of the offence, together with the offender's prior convictions and assuming, for present purposes, the most generous view of her subjective circumstances, a sentence of full time imprisonment of twelve months would have been the appropriate sentence."

1. The sentencing Judge found that, although the crime was one of omission, the inference was irresistible that the solicitor for the applicant had made the submission to the Magistrate about cancer on the basis of instructions from the applicant.

Subjective features

1. As noted above, the applicant pleaded guilty in the District Court when the trial was imminent. She received a discount for the utilitarian value of that plea of 10 per cent.

1. The sentencing Judge was not persuaded that the applicant was remorseful.

1. The criminal record of the applicant was not unblemished. She had been convicted of assault in 1995 and 2003. In March 2004, about two and a half years before the commission of the public justice offence under consideration, the applicant was convicted of passing two valueless cheques. In October 2010, many years after the commission of the offence, she received a suspended sentence of imprisonment for 8 months for the offence of obtaining money by deception, based upon her receipt of money that was derived from the fundraiser.

1. Aged 42 when she stood for sentence in the District Court, the applicant had had an unhappy and unprivileged life. She had been bullied and teased as a child because of her appearance. She first became pregnant at the age of 14 or 15, and by the time she was aged 21 was the mother of 4 children. Due to a bitter family dispute she left Mount Druitt and moved to Hill End. Her husband became gravely ill, and by the time she pleaded guilty to the offence she was his primary carer. She herself had been a slow learner as a child and was an unsophisticated, simple woman. More recently, she developed clinical depression. That became so severe that she was admitted to a clinic for treatment for that condition in September 2010.

1. Her crimes attracted a degree of media attention. They were discussed on national television, and one can safely infer that the coverage was adverse to the applicant.

Grounds of Appeal

1. Four grounds of appeal have been notified. I shall deal with each of them in turn.

Ground One: "His Honour erred, when assessing the criminality of the s 319 offence, in forming an opinion as to the sentence which ought to have been imposed in the Local Court for the assault occasioning actual bodily harm, and in taking this matter into account on sentence."

Submissions

1. Counsel for the applicant submitted that it was an error of law for the sentencing Judge to embark upon a consideration of the hypothetical outcome in the Local Court if the public justice offence had not been committed. She also submitted that there was an error of fact in the determination of the sentencing Judge that the offence necessarily had the direct effect of evading a sentence of imprisonment for 12 months. Finally, counsel submitted that that exercise impermissibly conflated a sentence that ought to have been imposed for the assault occasioning actual bodily harm with the sentence that was actually imposed for the public justice offence.

1. Counsel for the respondent submitted that it was correct for the sentencing Judge to undertake the exercise of seeking to determine the effect that the public justice offence had on the criminal justice system. He also submitted that the finding of fact was reasonably open. Finally, he submitted that there was nothing to suggest that the conflation alleged by counsel for the applicant had occurred.

Decision

1. I consider that it was an important part of assessing the objective seriousness of the public justice offence for the sentencing Judge to determine the effect that the offence had on the proceedings before the Magistrate. By way of illustration, identical lies on oath ("I did not see my neighbour drive his car that day") may be vastly different in seriousness, depending upon whether what was at stake was a fine for driving whilst disqualified, or many years in gaol for murder. I do not perceive error in the sentencing Judge undertaking that task.

1. Nor do I think that the finding of fact was not reasonably open and is therefore liable to attract intervention of this Court. It is noteworthy that the sentencing Judge did not seek to determine what "must" or "would" have happened before the Magistrate. That would have been a different exercise, in light of the fact that the Magistrate did indeed order a pre-sentence report (and therefore cannot have been determined to sentence the applicant to full-time imprisonment there and then). I also accept that the statement "the only thing stopping you from going to gaol is your medical condition" could well have been more of a post-sentence admonition to good behaviour in the future rather than a considered reflection of what would definitely have happened but for the purported illness.

1. Instead, the sentencing Judge referred to the sentence that "ought to have been imposed" and the sentence that, in his Honour's opinion "would have been the appropriate sentence". Those determinations were made after taking into account all of the evidence before the sentencing Judge, not just the material before the Magistrate.

1. I do not consider that the sentencing Judge was finding as a fact what would have happened. His Honour was determining what ought to have happened. I consider that the finding that the applicant ought to have been sentenced to imprisonment for 12 months, taking into account everything that the sentencing Judge knew by that stage, was reasonably open.

1. Finally, I do not accept that there was a conflation between the sentence that ought to have been imposed for assault occasioning actual bodily harm and the sentence that was actually imposed for the public justice offence. It would have been an error for the sentencing Judge to seek to make up for the gaol sentence evaded in the Local Court with the gaol sentence imposed in the District Court. But there is no sign of that having happened.

1. I would not uphold Ground One.

Ground Two: "His Honour erred by failing to take into account the psychological effect of harassment, public opprobrium and humiliation."

Submissions

1. Counsel for the applicant submitted that the fact that the sentencing Judge made no explicit reference in the remarks on sentence to the media attention paid to the applicant demonstrates that it had not been taken into account. Counsel submitted that it is well established that such treatment can be taken into account as extra-curial punishment, and submitted that it should have been taken into account in the particular circumstances of this case.

1. Counsel for the applicant further directed this Court to the decision in Kenny v R [2010] NSWCCA 6. In that case Howie J (with whom Basten JA and Johnson J agreed, Basten JA also delivering a separate judgment) said at [44] - [45]:

"[44] There is little doubt that a court can take into account the effects upon the offender that have occurred as a consequence of the commission of the offence. It can be a financial loss, for example the loss of employment or superannuation benefits. It can be a physical injury that has occurred to the offender, for example serious injury to the driver charged with causing death or injury to some other person as a result of the use of a motor vehicle. But it can go further and include other types of disadvantages resulting from the offending.

[45] In R v Allpass (1993) 72 A Crim R 561 the Court was concerned with a Crown appeal in respect of the digital penetration of the vagina of a 9 year old girl by a man aged 76. There was intense media coverage of the offence and the sentence imposed. The Court referred to some of the effects of the offence and its publicity as follows:

The evidence showed that, following the events of 4 January 1992, the respondent and his elderly wife were subjected to a campaign of abuse and harassment, involving threats of serious injury to person and property. It should be added that the Crown concedes that it is relevant to the outcome of this appeal that this campaign intensified following the announcement of Judge O'Reilly's decision. It reached such a level that the respondent was forced into a psychiatric clinic for treatment, and, according to the evidence, he was pursued even there. The respondent and his wife have had to leave their home, removing their belongings under cover of darkness, and they now live elsewhere under assumed names. Quite apart from the decision of this Court, the respondent and his wife have paid a high price for his wrongdoing.

This was one of the considerations taken into account by the Court in determining to dismiss the Crown appeal."

1. Counsel for the respondent submitted that the evidence was vague and imprecise, and in any event was not so extreme as to amount to extra-curial punishment that needed to be taken into account. He contrasted this case with cases where the careers of offenders had been destroyed, or their lives disastrously disrupted, such as in R v Allpass (1993) 72 A Crim R 561.

Evidentiary Background

1. The evidentiary background is as follows. The applicant gave evidence before the sentencing Judge on 24 August 2011, and referred to the topic of media attention. On the same day the report of Dr Jones was tendered. That made reference to the topic as follows:

"Ms Church went on to say that she had the media at her house and that she had 'been punished enough.' She accepted that some people were still angry that she had lied."

A little later, the report of the psychiatrist also said:

"Ms Church told me that she did not go out of her house much any more and that she tries to avoid people she knows in shops because she is aware that people are judging her. She told me that she gets short of breath in these circumstances."

1. On 14 October 2011, very shortly before the sentencing Judge imposed sentence, the solicitor then appearing for the applicant said in submissions:

"Your Honour it is my submission that there has been some degree of extra-curial punishment. There has been extensive media coverage and the prisoner has given evidence about that and that maybe [sic] taken into account as extra-curial punishment in relation to the intense security which she has borne caused by her own actions."

Decision

1. I accept that the actions of the media can, in extreme cases, amount to extra-curial punishment. I also accept that the media interest in this matter was substantial, and having one's crimes exposed on national television could be gruelling and possibly deleterious to one's mental health. But here the applicant had undertaken an unusual and brazen crime that featured not only deception of a magistrate but also of a community. More generally, it is well-known that crimes committed by local citizens are given much more prominence in the media in small country towns than they are in metropolises like Sydney.

1. In any event, I am not persuaded that his Honour failed to take the media attention and its effects on the applicant into account. The solicitor for the applicant made oral submissions about the media attention very shortly before his Honour delivered the remarks on sentence. It is most unlikely that his Honour had forgotten or disregarded what had been said by the solicitor of the applicant moments before. His Honour also referred to the report of Dr Jones when his Honour said in the remarks on sentence:

"A strong subjective case has been advanced on behalf of the offender through the pre-sentence report and the report of a psychiatrist, Dr Jones."

1. It is true that it is incumbent on a sentencing judge or magistrate to explain his or her findings and reasons in the remarks on sentence. But that does not mean that, wherever there is a failure to refer to any fact or topic in the remarks on sentence, one must infer that the matter was not taken into account, and error is thereby established. Remarks on sentence should not be unnecessarily lengthy, and on many occasions can be succinct, even in the District Court. Their purpose is to explain to the offender, the persons present in court, and the wider community, why the sentencing judge or magistrate is imposing the sentence that will immediately follow. Remarks on sentence should not have to recite laboriously all of the evidence given or tendered, the facts found, or the legal principles applied, for fear of committing an error by omission. The mere fact that a matter has not been mentioned in the remarks on sentence does not of itself found an appeal to this Court.

1. I do not consider that Ground Two has been established.

Ground Three: "His Honour erred by failing to take into account the applicant's depressive illness when considering the overall sentence."

Submissions

1. Counsel for the applicant submitted the only reference to the psychological condition of the applicant in the remarks on sentence was as follows:

"There is objective material available to the effect that she does now have some psychological condition, which will make gaol more difficult for her than for other offenders. In those circumstances, I am prepared to find that special circumstances exist which justify the alteration of the ordinary ratio between the principle between the parole period and the non parole period."

1. She submitted that the mental condition of the applicant did not just relate to special circumstances, but also to the overall sentence.

1. Counsel for the respondent replied by inviting attention to the passage extracted by me above, in which the sentencing Judge referred explicitly to the "strong subjective case" and immediately thereafter to the report of Dr Jones.

Decision

1. As one would expect, the central focus of the psychiatric report was the mental state of the applicant, past, present and future. That in turn focussed very much on her depressive disorder, its causes, development, and treatment. I do not consider that it has been established that the sentencing Judge failed to take that aspect of the case into account.

1. I would reject Ground Three.

Ground Four: "His Honour erred in finding that specific deterrence was a significant consideration."

Submissions

1. Counsel for the applicant submitted that there had been a very substantial delay in the matter. The offence occurred in October 2006, and the applicant was sentenced in October 2011. During that time, apart from the offence of dishonesty that had been committed in November 2006, the applicant had been free of crime. Counsel for the applicant invited attention to the statement of the sentencing Judge in the remarks on sentence:

"[n]otwithstanding this offender's lack of remorse, given her age and the totality of her background, I am satisfied that her prospects of rehabilitation (in the sense it is unlikely that she will re-offend) are good."

A little later, the sentencing Judge said:

"General deterrence, therefore, is a very important factor in the present case.

Having regard to the offender's history and notwithstanding my assessment of her prospects of rehabilitation, specific deterrence also remains a significant consideration."

1. Counsel for the applicant submitted that, in all of the circumstances, it was erroneous to find that specific deterrence remained a significant consideration in sentencing the applicant.

1. Counsel for the respondent submitted that, in truth, all the sentencing Judge was doing was referring to the well-known purposes of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

1. General deterrence has an obvious and important role to play in the punishment of public justice offences. I consider that, very often, specific deterrence will play an important role with regard to such offences as well.

1. In this case, the applicant had committed offences of dishonesty, both before and after the public justice offence. Her evidence on oath had not been accepted by the Magistrate in 2006 and the sentencing Judge in 2011. The sentencing Judge also rejected what the applicant had told Dr Jones in November 2010. In all of the circumstances, I consider that it was open to the sentencing Judge to find that, even despite the absence of further offences over a number of years, and the unlikelihood of re-offending, specific deterrence had a role to play, especially with regard to offences which involve dishonesty or being untruthful, even by omission.

1. Speaking more generally, I do not consider that a finding that an offender is unlikely to re-offend thereby automatically precludes specific deterrence from playing a role in a sentence to be imposed.

1. I do not consider that Ground Four has been established.

Ground Five: "The sentence is manifestly excessive."

Submissions

1. In support of this ground, counsel for the applicant drew attention to the starting point of imprisonment for 3 years, and submitted that, when one considers the seriousness of the offence, the powerful subjective case, the rehabilitation of the applicant, her mental condition, and the position with regard to her gravely ill husband, the sentence is manifestly excessive. She emphasised that, at the time she committed the offence, the applicant was not a person who played or had played a role in the administration of justice, such as a police officer (see R v Nguyen [2004] NSWCCA 332; (2004) 149 A Crim R 343) or a retired judge (see R v Einfeld [2010] NSWCCA 87; (2010) 200 A Crim R 1).

1. Counsel took the Court to statistics from the Judicial Information Research System ("JIRS") to demonstrate the sentence is seemingly too severe in all of the circumstances, and does not fit comfortably in the range of sentences imposed at first instance. She also referred to a number of decisions of this Court with regard to offences against s 319 of the Crimes Act by way of a helpful table summarising thirteen appeals. She noted that the offence itself was in truth unsophisticated and very likely to be detected, as it ultimately was.

1. Counsel for the respondent invited attention to well-known cases to the effect that what must be demonstrated in this Court is not merely a sentence that is stern or even severe, but rather a sentence that demonstrates a latent miscarriage of the sentencing discretion (House v R [1936] HCA 40; (1936) 55 CLR 499) or a sentence that is "unreasonable or plainly unjust" (Markarian v R [2005] HCA 25; (2005) 228 CLR 257). He also submitted that this Court is one of error, and that it is not a matter of a judge of this Court merely determining whether he or she may have exercised the sentencing discretion differently from the sentencing Judge at first instance.

Decision

1. The JIRS statistics provide a useful overview of sentencing patterns at first instance. They can also sometimes indicate that a sentence sits inexplicably outside that pattern. But they are rarely determinative, and I do not find them to be so in this case.

1. Nor do the other cases to which counsel invited attention persuade me that the sentence is manifestly excessive. They persuade me that the sentence imposed was stern, but not inappropriately so.

1. Public justice offences constitute an attack on the administration of justice, and very often upon the criminal justice system. It is not uncommon for them to be more serious than offences against property, and even some offences against the person. The present case is an example of that phenomenon. I regard the crime that the applicant committed in the Local Court at Mudgee as much more serious than the crime she committed in the Royal Hotel in Hill End.

1. Furthermore, it is not as if, on the morning of Court, the applicant, paralysed with fear of being incarcerated, spontaneously told a desperate lie to her solicitor. On the contrary, the sentencing Judge was satisfied that the deception extended over many weeks, and was, during that time, engaged in with an eye to avoiding gaol by perverting the course of justice.

1. I accept that the ruse was unsophisticated and very unlikely to be ultimately successful, in the sense of the applicant escaping punishment permanently. I also accept that the life of the applicant has been marred by unhappiness, misfortune, and illness, both her own and others. However, it seems to me that it has not been established that a sentence of imprisonment for a total term of 2 years 8 months with a non-parole period of 1 year 4 months is so far beyond the available discretion of the sentencing Judge as to constitute error. Accordingly, I do not consider that Ground Five has been established.

Orders

1. In short, I would not uphold any ground of appeal against sentence. The orders that I propose are:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

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Decision last updated: 10 July 2012