Director of Public Prosecutions v Foster
[2017] VCC 1397
•28 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00138
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEFFREY FOSTER |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November and 5 December 2016, 25 and 26 July and 22 September 2017 | |
DATE OF SENTENCE: | 28 September 2017 | |
CASE MAY BE CITED AS: | DPP v Foster | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1397 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of making a false document, one charge of using a false document and perjury
Legislation Cited:
Cases Cited:
Sentence: TES of 2 years and 6 months’ imprisonment – to serve 6 months with balance of term suspended for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Goodenough | Office of Public Prosecutions |
| For the Accused | Mr J Lavery | Emma Turnbull Lawyers |
HER HONOUR:
1 Jeffrey Foster, you have pleaded guilty to one charge of making false documents and one charge of using a false document, each of which carries a maximum penalty of 10 years’ imprisonment. You have also pleaded guilty to one charge of perjury which carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending are detailed in the summary of prosecution opening (Exhibit “A”). Your offending occurred in the context of Family Law proceedings in the Federal Circuit Court relating to your marriage to Deborah Foster, whom you married in 1992. In 2006, you separated, but remained living under the one roof at the family home at 28 Kingsley Drive, Sunbury, with your estranged wife and your three children.
3 In 2007, your estranged wife commenced proceedings in the Federal Circuit Court for a division of the marital assets. In the course of those proceedings, you claimed that you owed your mother, Adele Foster, approximately $147,000 for repayment of a debt. This was alleged to be related to the purchase of the family home in 2002 for the sum of $195,000 cash. You alleged that the purchase had been funded in part by a loan to you of £50,000 plus interest the subject of a promissory note dated 9 May 1998 made out to Sylvia Ann Pimley. You further alleged that you had made multiple repayments to Mrs Pimley until such time as the loan was paid out on your behalf by your mother, Adele Foster. This refinancing of the loan by your mother was said by you to be the subject of a further promissory note loan document dated 10 January 2005 in the sum of $140,000 plus interest. You claimed to have made various repayments to your mother in relation to this alleged loan, stating that as at 31 January 2009 you still owed your mother $146,527.12. For the purpose of supporting your version of events, you created a total of eight false documents in relation to the alleged loans and repayments and exhibited those documents to affidavits sworn by you in the proceedings.
4 The eight false documents are the subject of a rolled-up charge, Charge 1. The documents were as follows: a document on the letterhead of a firm of solicitors, DB Thakerar & Co in Middlesex, England, purporting to be terms and conditions of a promissory note dated 9 May 1998, whereby you promised to repay a loan of £50,000 together with annual interest of 4.5 per cent to Mrs Sylvia Ann Pimley. The document purported to be signed by yourself, Sylvia Ann Pimley and a Simon Watson on 9 May 1998 (“the promissory note loan document”); a covering letter dated 9 May 1998 on the same letterhead of the English firm of solicitors; a table of alleged loan repayments made by you to Sylvia Pimley between 1998 and 2005; a further promissory note loan document dated 10 January 2005 in favour of your mother, Adele Foster in the sum of $140,000 together with annual interest of 4.5 percent; a table detailing purported cash withdrawals for loan repayments purportedly made to Sylvia Pimley; a receipt book detailing purported loan repayments by you to your mother, Adele Foster; and three separate tables of purported loan repayments by you to your mother, Adele Foster. All of these documents were created by you between 29 February 2008 and 22 March 2010.
5 Charge 2 involved you, in March 2008, causing your solicitor to forward to your wife’s solicitor the promissory note loan document and the covering letter on the same letterhead of the English firm of solicitors. You represented the loan as being part of how the family home had been purchased.
6 Charge 3, perjury, is also a rolled up charge. It involved you swearing six affidavits in the proceedings before the Federal Circuit Court between December 2008 and 22 March 2010. The false documents which you had made were exhibited to the various affidavits which contained false evidence to the effect that your mother, Adele Foster, had paid out the debt owed to Sylvia Pimley and you had an amount of approximately $147,000 still owing to your mother in relation to the loan which had been used to purchase the family home. The various false documents made by you were represented as evidence of the loan and the extent to which you had repaid it. The perjury charge also included your swearing on oath in a contested hearing at the Federal Circuit Court in Melbourne on 26 March 2010, that you owed money to your mother, Adele Foster, because your mother had paid out the loan to Sylvia Pimley for £50,000, which loan had been made in 1998 so that you could purchase a house when you migrated to Australia and that your mother had paid out the loan for you in 2005. You relied upon your false affidavits and the false documents exhibited thereto in support of your evidence.
7 Your perjury resulted in His Honour Judge Burchardt, who was hearing the case, to make orders in May 2010 that the proceeds of sale of the matrimonial home be divided by giving 50 per cent to your wife ($152,925.17), 30 per cent to you ($91,755.11) and 20 per cent to the Estate of your mother ($61,170.) You were a beneficiary under your mother’s Will entitled to receive 40 per cent of her Estate, that is, $24,680 of the 20 per cent share of $61,170 which went to the Estate. By reason of His Honour Judge Burchardt acting on your false evidence, the amount available to be divided between your wife and yourself from the sale of the family home was reduced by the said $61,170.
8 Police investigations revealed that you had undertaken an elaborate process of creating the promissory note loan document and the covering letter. You purchased tracing paper and watermark paper from office suppliers to reproduce the name of the English firm of solicitors and its logo in order to produce the promissory note loan document and the covering letter. An analysis of your computer also showed that you had produced tables on that computer detailing loan repayments and cash withdrawals for purported loan repayments to both Mrs Pimley and your mother. You also created 34 receipts of payments in an “Olympic 615” receipt book purporting to detail repayments to your mother of the loan from 28 November 2004 until 23 December 2008. However, evidence was obtained that that particular receipt book was not manufactured until after late December 2005.
9 You were arrested and interviewed by police on 3 September 2015. You denied the charges of making false documents, using false documents and perjury. You claimed that the promissory note loan document and covering letter bearing the letterhead and logo of the English firm of solicitors were “replicas”. You alleged that they had been made by your father, who had died on 28 April 2007. Investigations revealed that your father was dead at the time the documents were created and the relevant stationery items were purchased to create the documents.
10 The charges to which you have pleaded guilty were listed for trial in the County Court on 7 November 2016. The matter was stood down for discussions and, on the following day, the matter resolved and a plea indictment was filed over the trial indictment. You pleaded guilty to the three charges for which I must sentence you on that day, 8 November 2016. However, you disputed a number of matters in the prosecution opening. In particular, your counsel made it clear that, although you had pleaded guilty to the charges, you still maintained that the purchase of the family home had, in fact, been partly funded by a loan. This is alleged to have been in the sum of £50,000 advanced to you from Mr John Pimley, the late husband of Sylvia Pimley. In essence, you sought to establish by way of mitigation that, as Mr Pimley had died by the time of the Family Law proceedings, it was not possible for you to obtain evidence from him about the loan. Hence, you created the false documents in order to have these matters taken into account by the Federal Circuit Court in determining the division of family assets.
11 The matter was adjourned to 5 December 2016 to enable you an opportunity to call evidence in relation to the alleged loan. On 5 December 2016, your counsel made application for a further adjournment as you had been endeavouring to contact a witness by the name of John Bevan, who had been the best man at your wedding in England. You alleged that he had witnessed John Pimley giving you money which was part of the alleged loan which had been repaid by you to John and Sylvia Pimley. The matter was adjourned to enable you to find this witness.
12 At the adjourned hearing on 25 July 2017 you were represented by a different counsel. John Bevan was not called as a witness, as you stated that you had not been able to locate him. The hearing proceeded over two days in which you endeavoured to convince the court that you had, in fact, financed the purchase of the family home by a loan, albeit that you had created false documents evidencing the loan. Sworn evidence was given by yourself, your son, Allan Foster, your daughter, Tiffany Foster, and a friend from England, Simon Watson.
13 I must say that I found it very difficult to make sense of your evidence. You stated, “I will accept that documents were fabricated as replicas of the original documentation which showed the money trail as it was and as it came about.”[1] The promissory note loan document purports to be for an amount of £50,000 being a loan to you from Mrs Sylvia Pimley on 9 May 1998. However, you stated that the £50,000 was never advanced as one amount but, rather, advanced over time in increments[2] and that the first amount was £5,000, in £20 notes, given to you at the start of May 1998.[3] You claimed that the English solicitor, Mr Thakerar, had acted for you on an earlier occasion regarding some form of litigation which you had brought against your parents in 1996. You stated that Mr Thakerar gave you a template or blank promissory note and, when John Pimley gave you an initial £5,000 to start with in May 1998, you and he both signed the promissory note and Simon Watson witnessed it. I here interpolate that this is in stark contrast to Exhibit JRF-13 to an affidavit sworn by you on 30 April 2009 in which you stated “…in May 1998 John and Sylvia agreed to deposit a sizeable amount of money £50,000 in a bank account in Australia with interest to be repaid at 4.5% after we arrived… in May 1998 John and Sylvia travelled to London and we signed the promissory note”.[4]
[1]Transcript (“T”) 36
[2]T35
[3]T40
[4]Page (?) 16 of Exhibit B
14 It was never suggested by you in your evidence that there were any subsequent promissory notes relating to any moneys supposedly loaned to you by John Pimley amounting in total to £50,000. Later in your evidence you stated that the Pimleys had given you money from 1998 up until about 2001. You went on to say that you started paying them back in 2004. You stated, “It was a gentlemen’s agreement and I've stated that in my statement. Again, it was a promissory note. It was purely on trust.” You then went on to say that John Pimley “technically wanted that money out of the country. He knew that we had applied to go to Australia.” You further stated, “John was happy to lend me the money and send the money overseas.”
15 You claimed that the Australian Government vetted your financial situation and “they accepted that I was transferring money from England into the Commonwealth Bank account.” You tendered as Exhibit ”1” a photocopy of a document purporting to be a letter of introduction from the Commonwealth Bank of Australia, Financial and Migrant Information Services, London, to the manager of a branch of the Commonwealth Bank at 150 St Georges Terrace, Perth dated 15 July 1998, accompanied by a term deposit of £33,985, equivalent to $85,982.05, and a receipt for same.
16 You stated that, later on, when you returned to England, when you realised your wife was trying to divorce you, you went to ask Mr Thakerar for a copy of a promissory note but he was not there anymore.[5] You were unable to get John Pimley’ signature on a promissory note because he had died in 2005.[6] Your evidence became more and more incomprehensible. You stated that you deliberately put Mr Thakerar’s name on the false promissory note because you had understood that a solicitor’s name should not be on such a document. Hence, you claimed that people would see that it was a flawed document and that you had never meant to defraud anyone.[7] You also stated that you had deliberately incorrectly put Sylvia Pimley’s name on the false promissory note with a middle name Ann (which is not part of her name) because you knew that was not her proper name and you had put it there so that she would not be liable.[8] Why you would consider her to have any liability is a mystery since you are claiming that you were liable to repay money to her, not the other way around.
[5]T39
[6]T30
[7]T41
[8]T80
17 You stated that the purchase price of the family home, some $195,000 in April 2002 had been transferred from your cash account with the Commonwealth Bank and there was no mortgage. You stated that you would not have been able to pay cash for the house unless you had received a loan of some sort. You claimed that about $100,000 of the purchase price had come from the alleged £50,000 loan from John Pimley. You claimed that your wife had destroyed documentation that supported the existence of this loan, “Bank statements and everything” and referred to the proceedings in the Federal Circuit Court by saying, “She knew because she destroyed the original document and she’s looking at a document that’s slightly different but it conveys exactly the same loan details”.[9] It was not at all clear to me what “original document” you were claiming your wife had destroyed.
[9]T42
18 You son, Allan Foster, gave evidence that from 2008 onwards his mother, that is your former wife, Deborah Foster, was dating a person called Brent Munro. The two of them would go into the garage and take things that belonged to you and put them in boxes and take them away in the boot of a car. On one occasion at the end of 2009 or 2010, when he was 9 or 10 years old, he recalls picking up a box which had liquid on it and it got onto his clothing which started to disintegrate and burn his skin. The box contained lots of documents and he said he could not read anything on them.[10]
[10]T90 – 94
19 Also called to give evidence was your daughter, Tiffany Foster. She stated that she was aware of her mother and her mother’s boyfriend going through boxes in the garage and clearing out junk. She believes that this would have been between 2008 and the end of 2011. She was aware that some of your belongings were in boxes in the garage.[11]
[11]T112 – 114
20 Evidence was given by video link from England by Simon David Watson, who is a friend of yours. He stated that sometime between 1996 and 1999 his car had broken down on a motorway in England, at some point on the London side of Birmingham. He believes he returned home that night and telephoned you and you said that you would give him a lift to his broken down car, because you had already arranged to meet a friend, “John”, on that day and that you would have John bring an alternator down to fit to his car. He did not know the surname of John. He states that John gave you an envelope or a brown paper bag with some money in it “Quite a big wad, but not a huge wad”. He stated, “I can’t really picture it exactly”. He went on to state, “I can’t really picture it exactly. But I'm – I'm sure it have been an envelope because a brown paper bag, thinking about it, only a shopkeeper would have a brown paper bag, not a bloke in a van.”[12] He stated that he could not remember having a conversation with you about the money but you were talking about the car. He was unable to say when it was that he had been asked to give evidence in this matter. He said, “A few years ago I think.” When asked what he meant by that, he stated, “I don’t know. I can’t remember. Um, not a huge amount of time ago.” He was asked whether it was this year and he said, “No, I think, I think a couple of years ago or so. I'm not, I'm not – I can’t even remember.” He was unable to say whether it was 2015 or 2016 or a few years ago.[13]
[12]T99
[13]T102
Findings on the facts
21 I am unable to be satisfied that you had received a loan, either formal or informal, from anyone which went towards the purchase of the family home. Your evidence was an addled account which contained inherent contradictions whereby you claimed that the promissory note loan document was a “replica” of an earlier document but also stated that it was only the initial £5,000 advanced to you by John Pimley which had been incorporated in a promissory note. Although you stated that Simon Watson witnessed this £5,000 promissory note (as distinct from the promissory loan document for £50,000 dated 9 May 1998 also purportedly witnessed by him) no question by your counsel was put to Mr Watson asking about his signature on any loan document. Moreover, your claim in your evidence that the loan was the subject of a “gentlemen’s agreement” contradicts that there was anything in writing. Your explanations about incorporating the solicitor’s name and letterhead on the document you produced and deliberately putting in a middle name “Ann” to Sylvia Pimley’s name, make no sense whatsoever. I place no weight on the evidence of your children in support of your proposition that your wife somehow destroyed documents in support of this alleged loan from John Pimley.
22 Sylvia Pimley gave a statement to police dated 26 July 2014 and was cross-examined on oath by video link from England on 2 November 2016. Her evidence is that she has no knowledge of any loan at all made by her husband or herself to you and that they would not have had £50,000 to advance to you by way of a loan. She stated that her husband had been seriously injured in a car accident in 1995 and he was receiving hospital treatment to repair his smashed legs from then until he retired in 1998. She denied that she had ever seen any of the documents produced by you in relation to any such loan or any purported repayments of it to her. She stated that she had never received any money from either you or your mother, Adele Foster, at all. I accept her evidence without reservation and it makes nonsense of your evidence.
23 You impressed me as a man who cannot be believed upon his oath. In your evidence before me, you stated that Sylvia Pimley did not sign the document but agreed that you had told police in your record of interview that she had.[14] You agreed, also, that you had told police in your record of interview that your father had created the promissory note loan document.[15] Your father had died on 28 April 2007 well before the date upon which you were questioned by police and would have been unable to contradict you. I cannot comprehend why it would make sense for your father to falsify this document. In any event, investigations indicate that the stationary items used to create the fake promissory note and covering letter were purchased after your father’s death.
[14]T75
[15]T73 – 74
24 It was put on your behalf by Mr Lavery that, in order to have purchased the family home in 2002 for $195,000 without a mortgage, there must have been a loan from some other source. In my view, this would be speculation on my part, given that I find you to be a person unworthy of belief on oath. By the time you purchased the house, you were 42 years old and had worked as a motor mechanic for the entirety of your working life. Even if I were to accept Mr Watson’s evidence that someone called “John” gave you an envelope or paper bag of money on some motorway in England at some time between 1996 and 1999 (which I found vague and unconvincing), this is an unlikely basis for a legally enforceable loan agreement and is equally consistent with some form of underhand dealing.. It makes no sense that someone would be formally advancing you a loan in England in 1998 for a property which you did not buy until after you moved to Melbourne in 2002. You claimed that the loan money had been transferred to Australia because “the Australian immigration require to see that you have capital to support yourself”.[16] You purported to rely upon a photocopy of a document dated 15 July 1998 being a letter of introduction from the Commonwealth Bank in London showing receipt of the sum of £33,985, being equivalent to $85,982.05.[17] Apart from the fact that this is very much more than the £5,000 which you claim was initially advanced to you by John Pimley in 1998, your evidence before me provided an explanation which was totally different from that provided to His Honour Judge Burchardt in the Federal Circuit Court in which you made no mention of the need to prove your financial worth to Australian immigration authorities.[18]
[16]T55
[17]Exhibit “1”
[18]Transcript of the proceedings in the Federal Circuit Court of Australia on 26 March 2010, page 882.
25 I must say that I find it highly unlikely that your mother, who was the subject of a legal suit by you in 1996, for no apparent reason would have refinanced some loan on your house in 2005. Moreover, it is somewhat extraordinary that in your very first affidavit sworn on 9 January 2008 in the Federal Circuit Court proceedings you made no mention of the existence of any loan or debt or promissory notes in relation to the purchase of the family home, particularly as in paragraph 108 of that affidavit you sought to buy out your wife’s share of the house. I do not accept that there was ever any loan relating to the purchase of the home or that your mother, Adele Foster, made any repayments to Sylvia Pimley on your behalf. As I have said, I accept, without reservation, Mrs Pimley’s evidence given on oath that she knew nothing of a loan and never received any repayments.
26 Charge 1 is a rolled-up count which involves you going to quite elaborate efforts to create nine false documents over a period of two years and one month from 29 February 2008 to 22 March 2010. The premeditation and careful attention to detail, together with the fact that they were produced for the use in litigation in order to induce a Court to accept them as genuine, makes your overall offending quite grave.
27 Charge 2 involved using two of the false documents, namely the promissory note loan document and the covering letter purporting to be from your English solicitor, D B Thakerar & Co, by providing them to your solicitor in order to send to your wife’s solicitor. Although this is a discrete charge from Charge 1, I consider it appropriate to make the sentence on this charge concurrent in order to arrive at an overall just sentence.
28 The most serious charge is Charge 3, that of perjury. It, too, is a rolled up charge. This involves no less than six false affidavits exhibiting the false documents which form the subject of Charge 1. These affidavits were sworn over a period from 12 December 2008 to 22 March 2010. In addition, it involves false evidence on oath before the Federal Circuit Court on 26 March 2010 adopting the affidavits and exhibits to them as true and correct. Clearly, your whole purpose was to convince the court that there had been loans made and partially repaid by you in relation to the family home. Your false evidence was accepted by His Honour Judge Burchardt and 20 per cent of the proceeds of the sale of the family home were ordered to be paid to the Estate of your late mother, Adele Foster. This was a total sum of $61,170. As you are entitled to a 40 per cent share in that Estate, you would be entitled to receive $24,680 of this amount. I am told by counsel that the balance is due to go your brother and a nephew. I am not able to say how much of that $61,170 His Honour Judge Burchardt would have ordered to go to your wife, however, I am satisfied beyond reasonable doubt that some of it would have been the subject of such an order.
29 My impression of you, after hearing you give evidence on oath, is that you have aspects to your personality which are self-righteous, bitter, vengeful and controlling. I have read the Victim Impact Statement of your former wife made on 26 July 2017 (Exhibit “C”). Save for the fact that I accept that your dishonest behaviour probably protracted the family law litigation causing her unnecessary stress and legal costs, as well as depriving her of at least a portion of the aforementioned sum of $61,170, I place no weight on the other aspects of that statement which refer to your unhappy marriage and it’s aftermath.
30 You are presently aged 57 years. You come before the Court with two prior court appearances. On 17 March 2009, you were charged with breaching an intervention order which apparently had been made in favour of your wife on 30 October 2008, together with resisting police. Without conviction, these matters were adjourned upon your entering into a good behaviour bond for 12 months. You were ordered to pay $500 to the court fund and also to contact the Men’s Referral Service. On 3 October 2009, you came before the Broadmeadows Magistrates’ Court, again, for breach of that intervention order and unlawful assault. On the original charges, you were convicted and sentenced to an aggregate period of 1 month’s imprisonment which was wholly suspended.
31 I have been told that subsequent to the offending for which I must sentence you, on 25 August 2016, following a trial before a jury, you were convicted in the County Court of Victoria for one charge of attempting to pervert the course of justice. This charge related to circumstances where there had been an altercation between yourself and one Charlie Borg, who was the carer of your mother, Adele Foster, after she had a stroke in 2009, before she finally died in 2010, following a second stroke. Apparently there were strained relations between yourself and Mr Borg. Following the altercation, you had been charged with assault upon him. This was the subject of a contested hearing in the Magistrates’ Court at Sunshine on 17 June 2013. On the second day of the hearing, your counsel produced to the prosecutor a USB stick which you had given him, claiming that it contained footage of the altercation which was the subject of the charge. Digital forensic analysis established that the material on the USB stick was not footage of the actual incident on 25 July 2012 for which you had been charged.
32 On 31 August 2016 Her Honour Judge Davis sentenced you to a 6 month Community Correction Order, which included a condition that you complete 300 hours of unpaid community work. In her sentencing remarks, Her Honour noted that you were in an ongoing dispute with Mr Borg concerning your mother’s Estate and your relationship with him was poisonous and has left you deeply embittered. It seems that this deceitful behaviour has a similar vengeful theme to that which I perceive in your behaviour on Charges 1 to 3 before me. I detect absolutely no remorse on your part for the offending for which I must sentence you. Although you have already be punished for your subsequent offending of attempting to pervert the course of justice, it causes me to take a very guarded view about your prospects of rehabilitation. Although I note that you were acquitted on a trial on the assault charge, it seems to me that you have no qualms about being prepared to behave dishonestly to achieve what you perceive to be justice for yourself
33 Obviously Her Honour Judge Davis knew nothing of these matters to which you have pleaded guilty before me. She considered it unlikely that you would reoffend as your offending was driven by the particular history of your relationship with Mr Borg and she noted that once the matter before her was finalised, you would return to the United Kingdom as soon as possible. She considered you had very good prospects of rehabilitation. I take a very different view. You present as a person of a self-righteous nature who is extremely reluctant to accept moral responsibility for serious deceptive behaviour that strikes at the heart of the integrity of the justice system.
34 Tendered at the plea was a report from Dr Aaron Cunningham, forensic psychologist, dated 12 August 2016. Dr Cunningham had assessed you for the purpose of the plea hearing before her Honour Judge Davis. He assessed you as having an Adjustment Disorder with mixed anxiety and depressed mood. He thought you had developed clinical symptoms of depression and anxiety following the breakdown of your marriage and your symptoms of anxiety and depression had been perpetuated by the ongoing disputes with Mr Borg and your court matters. He considered that incarceration would aggravate and perpetuate your depression and anxiety and would perpetuate and aggravate your perceptions of injustice and symptoms of depression. I here note that, although I was told about a number of physical conditions for which you are currently prescribed medication, there was no indication that you were taking antidepressants. Dr Cunningham had stated in his report that you would benefit from psychological intervention, however, there is no evidence that this has occurred in the period of over 12 months since Dr Cunningham assessed you.
35 In addition, Mr Lavery drew to the Court’s attention that you are suffering ischemic heart disease with angina. Exhibit “3” showed that you had undergone an angiogram at Western Health on 15 October 2016. This showed abnormalities, particularly in relation to your left anterior descending artery and, on 15 January 2017, you were admitted to the Royal Melbourne Hospital suffering from symptoms of a unstable angina. Another angiogram was conducted on 16 January 2017 which showed that the left anterior descending artery has proximal 70 per cent stenosis across D1 and that D1 is large and has long ostial 80 per cent stenosis. You were discharged on new medication of Metoprolol, 12.5 milligrams per day; Prasugrel, 10 milligrams each morning, along with your existing medication of Aspirin; 100 milligrams daily, Atorvastatin, 80 milligrams at night; and GMT spray for angina as required.
36 In addition, there were two certificates tendered from general practitioners at First Point Medicals, 326 Keilor Road, Niddrie. These indicated that, in addition to ischemic heart disease and angina, you suffer multilevel cervical spine spondylosis for which you had previously been treated in the Alfred Hospital and you suffer neurological symptoms in both shoulders and arms, together with a partial thickness tear in the left supraspinatus tendon. These certificates dated 12 September 2016 and 23 January 2017 indicate that you are not fit for exertive activities until further cardiac follow-up, with specific restrictions on lifting above shoulders and not lifting more 5 kilograms and no repetitive movements of the arms and neck.
37 In sentencing you, I take into account that you have pleaded guilty, although it was not an early plea, and there has been a protracted dispute by you concerning the issue of whether there was in fact ever a loan relating to the family home. I have already stated that I find no remorse, however, you are entitled to a discount on the sentence, even for a late plea, as it does have some utilitarian value in having saved the cost of a trial. I also take into account that by reason of the physical conditions that I have mentioned and the psychological conditions the subject of Dr Cunningham’s report, that you are likely to find time in prison more burdensome than for someone who has not suffered such conditions.
38 The justice system is reliant upon people taking the obligation to tell the truth seriously. You have undermined that system by going to elaborate measures to produce false documents and to repeatedly swear false affidavits in protracted litigation in the Federal Circuit Court. This is conduct of such seriousness that no sentence is appropriate other than a term of imprisonment which must have some immediate custodial component.
39 In sentencing you, your conduct must be denounced and emphasis must be placed on general deterrence. It must be made clearly known to people in the community that if they produce false evidence and swear false testimony, then that will be appropriately punished. It is imperative that every member of the community understand that people who flout their obligations to give true evidence on oath bring that system of justice into disrepute and must be made an example of and will be appropriately punished. In your case of repeated false affidavits, followed by false oral evidence on oath, there is also some need for emphasis upon specific deterrence.
40 Your counsel has submitted that there should be total concurrency in relation to all matters. However, you have already received the benefit of Charge 1 and Charge 3 being rolled-up, counts which involved multiple discrete false documents and multiple examples of false testimony. Having said that, obviously the false documents produced by you which form the conduct on Charge 1 were necessary preliminary steps to the substantive offence of perjury, but they still have an independent existence and, therefore, in my view some cumulation is appropriate.
41 On Charge 1, you are convicted and sentenced to be imprisoned for a period of 18 months.
42 On Charge 2, you are convicted and sentenced to be imprisoned for a period of 6 months.
43 On Charge 3, you are convicted and sentenced to be imprisoned for a period of 2 years.
44 I direct that 6 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 3. Save for such cumulation, the sentences are to be served concurrently. The total effective sentence is 2 years and 6 months’ imprisonment.
45 I direct that you serve a period of 6 months and that the balance of the term of imprisonment be suspended for a period of 3 years.
46 I declare a period of 7 days’ pre‑sentence detention to be reckoned as time already served under the sentences imposed this day.
47 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence would have been 3 years’ imprisonment with a non-parole period of 2 years.
48 Mr Foster, the sentence I have imposed is a term of imprisonment which has been partially suspended. Once you serve the immediate custodial component of six months, you will still be serving a term of imprisonment albeit that you are permitted to serve it in the community. If you commit another offence punishable by imprisonment, whether inside or outside Victoria during the period of three years, then you will have breached this sentence and will be brought back before the court. Unless you can demonstrate exceptional circumstances, it is highly likely that you will be ordered to serve the balance of the sentence inside an actual prison.
49 Pursuant to s464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping form the mouth in accordance with subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider this order warranted by reason of the seriousness of the circumstances of your offending and the fact that it is not opposed by you. This procedure involves taking a swab of saliva from inside your mouth. If you do no cooperate with it then police are entitled to use reasonable force to obtain it.
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