Director of Public Prosecutions v Matthew Simon Freeman
[2011] NSWLC 8
•20 April 2011
Local Court
New South Wales
Medium Neutral Citation: Director of Public Prosecutions v Matthew Simon Freeman [2011] NSWLC 8 Hearing dates: 06/04/2011 Decision date: 20 April 2011 Jurisdiction: Criminal Before: Magistrate Christopher O'Brien Decision: As to sequences 1, 2 and 3 of H 42082012 being charges of using fabricated false evidence with intent to mislead a judicial tribunal the offender is convicted and sentenced to a fixed term of imprisonment of 12 months commencing 20 April 2011 and expiring on the 19 April 2012.
As to the charge of make false statement on oath amounting to perjury the offender is convicted and sentenced to a term of imprisonment that consists of a non parole period of 8 months and a total term of 16 months commencing 20 December 2011 and expiring on the 19 April 2013. He will be eligible for release subject to supervision on parole on the 19 August 2012.
Catchwords: CRIMINAL LAW - sentence - use false fabricated evidence to mislead a judicial tribunal and perjury- appropriate discount for plea- objective seriousness of the offending- need for general deterrence and denunciation- hardship to family- accumulation and totality Legislation Cited: Crimes Act 1900, ss 317, 327
Crimes (Sentencing Procedure) Act 1999, ss 3A, 21ACases Cited: Gilson v The Queen (1991) 172 CLR 353
Pearce v The Queen (1998) 194 CLR 610
Police v Power [2007] NSWLC 1
Porter v R [2008] NSWCCA 145
R v Anthony Aristodemou (unreported, NSWCCA, 30 June 1994)
R v Borkowski [2009] NSWCCA 102
R v Bulliman (unreported, NSWCCA, 25 February 1993)
R v Cahyadi [2007] NSWCCA 1
R v Craig Chapman (unreported, NSWCCA, 21 May 1998)
R v Doan (2000) 50 NSWLR 115
R v Dodd (1991) 57 A Crim R 349
R v Edwards (1996) 90 A Crim R 510
R v Einfeld [2009] NSWSC 119
R v Girard [2004] NSWCCA 170
R v H (1980) 3 A Crim R 53
R v Hewitt (unreported, Vic CCA, 7 February 1985)
Hopley v R [2008] NSWCCA 105
R v MA [2004] NSWCCA 92
R v Morris [2008] NSWCCA 115
R v Nguyen [2006] NSWCCA 369
R v Oliver (1980) 7 A Crim R 174
R v Shamji (1989) 11 Cr App R (S) 587
R v Jill Margaret Scott (unreported, NSWCCA, 27 November 1996)
R v Scott [2005] NSWCCA 152
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Way (2004) 60 NSWLR 168
R v Weldon; R v Carberry (2002) 136 A Crim R 55
R v Wirth (1976) 14 SASR 291
R v X [2004] NSWCCA 93
Veen v R (No 2) (1988) 164 CLR 465
Williams v R [2010] NSWCCA 15
Zhi Xiong Chen v R [2011] NSWCCA 85Category: Sentence Parties: Director of Public Prosecutions
Matthew Simon FreemanRepresentation: Mr David Eardley (for Mr Freeman)
Ms Emma Curran (for Director of Public Prosecutions)
Moscardo Lawyers (for Mr Freeman
File Number(s): 2010/304989
JUDGMENT
REMARKS ON SENTENCE
The Charges and the plea
The offender has pleaded guilty to one charge of making a false statement amounting to perjury on 24 September 2008, and six charges of using fabricated false evidence to mislead a judicial tribunal between 27 August and 24 September 2008, in breach of sections 327 and 317 of the Crimes Act 1900. Three of the six charges pursuant to section 317 are to be dealt with on a Form 1 in respect of the perjury allegation. The matter came before me for sentence on 6 April 2011 with Ms Curran appearing for the Director of Public Prosecutions (DPP) and Mr Eardley of counsel for the offender. At the completion of submissions I reserved my decision until today.
The offender pleaded guilty to all charges on 23 February 2011. An issue has arisen between the DPP and the representatives of the accused as to whether the plea was entered at the earliest possible opportunity. The DPP contends that the plea was not entered at the earliest opportunity but at a date some 6 months after the charge of perjury was initially laid, it being laid approximately 6 weeks before the balance of the charges. The offender says that the plea was entered at the first opportunity and that a full 25% discount should be extended for the utilitarian value of the plea in accordance with R v Thomson; R v Houlton (2000) 49 NSWLR 383 .
I have resolved this issue by reference to the unchallenged chronology submitted by the DPP and my own examination of the court papers. The perjury charge was laid on the 2 September 2010 and the use false fabricated evidence to mislead a judicial tribunal charges on the 13 October 2010. It is clear that from an early date in the proceedings the parties were engaged in discussions and negotiations regarding the pleas to be entered and the facts that would be put before the court on sentence, and that a plea of not guilty was not at any time entered by the offender. It is to be noted that the charges that I am to sentence the offender in respect of are the same as those initially preferred. There has not been any variation to those charges following the lengthy negotiations that have taken place. The fact remains however that the pleas of guilty were not entered until 23 February 2011, being the fifth occasion that the matter came before the court. Given that fact alone, the plea of guilty could not in my view be said to have been entered at the first available opportunity. It was always open to the offender to enter pleas of guilty and to indicate to the court that negotiations regarding the facts were ongoing. Generally the reason for the delay in the plea is irrelevant to the assessment of the discount to be afforded, because if it is not forthcoming then the utilitarian value is reduced. This is so even if there has been a plea bargain of some sort which is not the case here - see R v Borkowski [2009] NSWCCA 102. In these circumstances and allowing for the period of negotiation in which the parties engaged I allow a 20% discount for the utilitarian value of the plea.
The Facts
A document titled "Agreed Facts" was tendered to the court. In short the facts upon which I proceed to sentence are as follows. In 2004 the offender was employed at a Video Ezy store at Merrylands. By agreement with a friend the offender arranged for the store to be robbed on an evening when he was the only member of staff working. The co offender appeared to force the offender at knifepoint into the store as he was leaving for the night. He was then bound, money was stolen from the cash register totalling $851.58 and the offender was "forced" to hand over his bankcard and PIN following which $800 was removed from his bank account. The offender then claimed workers compensation as a result of the alleged robbery over an extended period, upon the basis that he suffered from post traumatic stress disorder. The total amount of workers compensation that the offender was paid was $42,506.69. Some three years after the "robbery" the co offender was linked to it by a DNA match and the offenders involvement in the scam was quickly uncovered. He was then charged with obtaining a financial advantage by deception x 2 and larceny as a clerk ("the initial offences"). He entered pleas of guilty to these initial offences and on 27 August 2008 appeared for sentence in the Local Court at Fairfield before His Honour Magistrate Reiss. In the course of those sentence proceedings the offender caused to be tendered four character references. The officer in charge, concerned that the references were not signed made enquiries of three of the referees and was apparently satisfied at that time as to the authenticity of the documents. The fact is, that three of the references were fabricated and intended to mislead the court. Magistrate Reiss sentenced the offender to various terms of imprisonment to be served by way of periodic detention. The three fabricated references were tendered to me in these proceedings. Two of them are on the letterhead of different organisations being Granville Kewpie Soccer Club and JB Hi Fi and the offender had obviously gone to some trouble in their creation.
The offender then lodged a severity appeal against the sentences imposed by Magistrate Reiss and that appeal came on for hearing before His Honour Judge Sides QC in the District Court at Campbelltown on the 24 September 2008. The fabricated false references were again put before the court, although on this occasion presumably as part of a bundle of documents tendered by the DPP. Apparently emboldened by the success of the ruse in which he had engaged in the Local Court the offender made the long walk from the body of the court, was sworn and then gave deliberately false evidence concerning one of his referees a person called Simon Douglas, who he said was his boss and who he later agreed in cross examination was not his boss at all. Mr Douglas was it seems a person otherwise known to the offender. Upon this false evidence being exposed during the hearing before Judge Sides QC, the severity appeal was not surprisingly withdrawn and dismissed, and the offender was ordered to serve the sentences initially imposed by Magistrate Reiss.
The offending that I am to deal with can be conveniently divided between that which occurred in the Local Court and that which occurred in the District Court although there is plainly an ongoing aspect and a degree of commonality between them. Some 2 years later the DPP laid the charges that are now before me for sentence.
Relevant Principles
Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides;
The purposes for which a court may impose a sentence on an offender are as follows;
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
In R v MA [2004] NSWCCA 92, the Court of Criminal Appeal observed that section 3A is in substance, a codification and elaboration of the purposes of criminal punishment set out in Veen v R (No 2) (1988) 164 CLR 465 at 476 where Mason CJ, Brennan, Dawson and Toohey JJ said:
"The purposes of criminal punishment are various; protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions".
As His Honour the Chief Magistrate noted in Police v Power [2007] NSWLC 1 at [31]:
"The sentence to be passed on the accused must ultimately reflect the objective seriousness of the offence committed and must be reasonably proportionate to the crime committed R v Scott [2005] NSWCCA 152. The maximum penalty is not an outcome that occurs as a matter of course. It is only in the gravest of cases that the maximum penalty will fall to be considered. Where an indictable offence is to be dealt with within the jurisdiction of the Local Court however the Court is required to assess where the objective seriousness of the offence lies by having regard to the maximum penalty for the offence not the maximum penalty which may be imposed by a Local Court [R v Doan (2000) 50 NSWLR 115]. Although the sentencing court is not bound to accept the correctness of an election by the prosecution to bring the matter to finality within this jurisdiction such a decision invariably brings with it, whether properly based or not, a concession that the objective seriousness of the conduct within the offence does not approach that of the gravest of cases."
The maximum penalties in respect of the offences before me are each of 10 years imprisonment. Plainly these exceed the jurisdictional limit of this court. In R v Way (2004) 60 NSWLR 168 the Court said at paragraph 51 that:
"The statutory maximum penalty has been regarded as an expression of the policy of the legislature in providing for the offence, (R v Oliver (1980) 7 A Crim R 174) at 177; Gilson v The Queen (1991) 172 CLR 353 at 364), or as a reflection of the seriousness of that offence as perceived by the public (R v H (1980) 3 A Crim R 53 at 65)".
Assessment of the criminality
What is perfectly clear is that these are very serious matters indeed. That this is so is clear from the penalties prescribed by the Parliament. The high maximum penalties recognise the importance of protecting the justice system. Offences of this type are easy to commit and often very difficult to detect. This offending involved a carefully planned and executed course of conduct aimed at misleading not one but two judicial officers. Having said this, I do not believe that it is the type of planned or organised activity that would be regarded as an aggravating factor within the meaning of s 21A (2)(n) of the Crimes (Sentencing Procedure) Act - see Williams v R [2010] NSWCCA 15. Nevertheless it is clearly not offending that occurred on the spur of the moment. It is to be noted that had the offender not appealed the sentence initially imposed and had the police officer involved not been as diligent in the exercise of her duties as she was, then the entire subterfuge may have gone undiscovered. Following the success of his initial ploy in the Local Court, the offender then sought to repeat and expand upon that in the District Court. It is this brazen and compounding repetition of the conduct, and the disdain that such conduct shows for the two courts involved and for the criminal justice system generally that lies at the heart of the offending. The offending occurred on two distinct occasions approximately one month apart in two different jurisdictions and involved the deliberate weaving of a complex web of deceit that was intended by the offender as a means of obtaining for himself a lesser sentence in respect of his initial dishonest conduct. No benefit was sought to be obtained for any other person, nor is it a case where the offenders behaviour was motivated by threats to him or by a desire on his part to protect others.
This is a case where on any view dishonesty is piled upon dishonesty purely for the offenders own purposes. So far as the tendering and reliance on the references is concerned the court must be vigilant to ensure that a real and substantial penalty is imposed. Every day in courts throughout New South Wales thousands of references are tendered to judicial officers for consideration in the sentencing process. They are important documents and often will have a significant impact on the penalty imposed on an offender. Courts must be able to rely on the veracity of them and attempts to deceive courts in this regard must be met by sentences that reflect that need for reliance, and the overriding need for there to be complete candour and honesty in such matters. If a situation existed where courts were not able to confidently rely on the references tendered to them then it would be those who seek to obtain benefit from them (being offenders) that would suffer. This would be a completely unsatisfactory outcome for the criminal justice system. Further, such a situation would also likely mean that character witnesses would be more regularly called to give evidence in sentence proceedings. It is not hard to imagine the use of additional court time that this would entail, and the consequent delay and cost to the parties and the community that would be involved. This effect would be particularly felt in the Local Court, where the result would be chaotic given the huge volume of work that this court transacts.
It is to be noted that the offenders culpability in respect of the perjury charge is "short lived" in that he did not when challenged in cross examination on the appeal compound his perfidy further, but rather made immediate admissions as to his untruthfulness. While it was "short lived", it is also the case that it was only when challenged in cross-examination that the offender "came clean". It was not the case that the offender had an attack of good conscience while giving his evidence and then made admissions of his wrongdoing. His culpability in respect of the fabricated references is conduct that was repeated on more than one occasion. Having carefully considered all relevant matters, including the prosecutions decision to have these matters finalised in the Local Court I am of the opinion that overall and in their totality these matters fall at a point below the middle range of objective seriousness for these types of offences.
The General approach to be taken
The offences for which the offender is to be sentenced are ones that strike at the heart of the administration of justice. The courts have repeatedly held that in such cases general deterrence and denunciation are to be given special weight. Severe sentences must be imposed - see R v Hewitt (unreported, Victorian Court of Criminal Appeal, 7 February 1985). In R v Einfeld [2009] NSWSC 119 James J said at paragraph 183 that " In the case of perjury a full time custodial sentence should be imposed, unless there are very special circumstances". On appeal no error was found with this statement of general principle. Of course this statement simply confirms a long line of authority pertaining to what are sometimes called public justice offences. Mr Eardley urged me to distinguish this matter from that of Einfeld (supra), particularly as to the sentence to be imposed, given that the offender in that matter was a Queens Counsel and a former Federal Court judge. I do not accept that submission, to the extent that it would, of itself, cause me to impose a sentence other than one of imprisonment. In both instances the offender was simply a citizen who had made a conscious decision to lie to a court. Notwithstanding that Mr Enfield's circumstances may have been somewhat aggravated by the position he had formerly held, that fact does not in my view lessen this offenders culpability.
In R v Shamji (1989) 11 Cr App R (S) 587 Russell LJ (for the Court) said (at 589-590):
"The circumstances in which perjury can be committed are infinite. Sometimes the effect upon others is devastating, for example, where as a result of perjury a defendant is wrongly convicted in a criminal trial and suffers imprisonment. ... Sometimes the perjurer lies to save his own skin. ...
The spectrum is very wide indeed, but there is, it must always be remembered, in cases of this kind one victim of perjury. That victim is the course of justice and its proper administration. Justice inevitably suffers whatever the motive for the perjury and in whatever circumstances it is committed. It is because of that inevitable feature of the offence that a conviction for perjury must always be visited, in our judgment, save in the most exceptional circumstances ... with an immediate custodial sentence. The purpose of that sentence is not only to punish the offender but to deter others and to make it plain that the commission of this offence will normally be visited with condign consequences."
In R v Bulliman (unreported, NSWCCA, 25 February 1993) Adadee J, with whom Gleeson CJ and Hunt CJ at CL agreed, said that when persons who make false statements in court are brought to justice they should be severely punished, irrespective of the outcome of the proceedings in which the false evidence was given, His Honour went on to say:
"False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the basis of it. Justice inevitably suffers, whatever be the motive for making of false statements on oath and whatever be the circumstances in which the offence of offences are committed. The purpose of an appropriate sentence in this class of case is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case".
In R v Anthony Aristodemou (unreported, NSWCCA,30 June 1994) Badgery-Parker J said:
"Any person who commits an offence of perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an [Independent Commission Against Corruption] Inquiry should do so in the clear understanding that if his offence is detected he will go to gaol except in very particular circumstances".
In some cases there can be discerned extraordinary and compelling subjective factors, including a long delay in prosecuting the offence and other unusual circumstances which might justify the imposition of a non-custodial penalty: see R v Craig Chapman (unreported, NSWCCA, 21 May 1998 per Simpson J). Mr Eardley directed me to this authority in his brief written submission dated 8 April 2011. I am not satisfied that the delay in this matter of 2 years is the type of delay that would of itself invoke the degree of leniency referred to by Simpson J. Indeed once the charges were laid against the offender they proceeded with some expedition through the court system. It was not a situation where the offender was charged with the offences and they then progressed at snails pace thus adding to the stress and anxiety felt by him. The question to be asked when considering delay as a mitigating factor is whether it has caused hardship to an offender or at least the perception of hardship- see R v Morris [2008] NSWCCA 115 at paragraph 40. There is no evidence in this matter that would allow me to conclude that question favourably to the offender.
The subjective circumstances of the offender
A strong subjective case was presented on behalf of the offender. In that regard I must be careful to ensure that those strong subjective factors do not cause me to give inadequate weight to the objective seriousness of the offending; there must be reasonable proportionality between these considerations- see R v Dodd (1991) 57 A Crim R 349. The offender is now aged 28 years. He was aged 21 at the time of the initial offences that commenced the spiral into his current predicament, and 25 at the time of the offences for which he is to be sentenced. He is unmarried. He is employed full time as a national DVD buyer for ABC Shops. He resides with his mother and two younger siblings all of whom suffer from hearing difficulties. He supports his mother and siblings financially and in other ways. His father is deceased and at the time of the offences for which he is to be sentenced was gravely ill. It is suggested, and I accept that the anxiety he felt regarding his fathers circumstances likely impacted on his judgment at the time of the offending.
I have read a report dated 1 February 2011 in respect of the offender prepared by Dr Olav Nielssen a highly regarded psychiatrist. His report indicates that the offender does not have a major psychiatric disorder requiring treatment and that he was assessed as a "a capable and energetic person with good potential for rehabilitation".
The pre sentence report prepared by the Probation and Parole Service and dated 30 March 2011 is generally favourable. He is said to enjoy stability in the community via both his employment and his family support. He conceded to the author of the report that he had committed the offences in an attempt to secure a lighter sentence and understands that what he did was wrong. I accept that this is the case and that he feels shame for his conduct. He was not assessed as requiring supervision and was assessed as being suitable to undertake a community service order.
Other than for the initial offences and the matters for sentence before me, the offender has no criminal history. It is of course relevant to observe that all of the offenders offending involve significant and calculated episodes of dishonesty. He does not appear before me as a person of prior good character.
The offender's family and the issue of hardship
Mr Eardley submitted that I should give weight to the hardship that would be occasioned to the offenders' family and particularly his mother if a custodial sentence were imposed. A letter from the offender's mother to this effect was tendered. This indicated that he provides both financial and emotional support to her and it would seem that she has become increasingly dependent upon him since the death of the offenders father.
The general principle is that hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not to be regarded as a mitigating factor unless such hardship is "wholly", "highly" or "truly" exceptional. In R v Edwards (1996) 90 A Crim R 510 at 516 the New South Wales Court of Criminal Appeal held that it was only when circumstances were "highly exceptional" and where it would be inhumane to refuse to do so that hardship to others can be taken into account. It is unfortunately part of the duty of judicial officers to regularly sentence offenders to terms of imprisonment notwithstanding that doing so will cause hardship to innocent parties. See also Hopley v R [2008] NSWCCA 105 at paragraphs 39 to 41.
The most frequently cited Australian judgment on the subject is that of Wells J in R v Wirth (1976) 14 SASR 291, His Honour said this at 295-296:
"Hardship to spouse, family and friends, is a tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court.... It seems to me that courts would often do less than their clear duty- especially where the element of retribution, deterrence, or protection of society is the predominant consideration- if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners."
As Gleeson CJ remarked in R v Jill Margaret Scott (unreported, NSWCCA, 27 November 1996), in respect of hardship caused to an infant child by his mothers incarceration;
"Without question this is a very sad circumstance. It needs to be remembered, however, that it is by no means uncommon for hardship, and sometimes grave hardship, to be caused to third parties by sentencing a person to prison. Judges and magistrates are routinely required in the course of their duty to sentence to prison parents of children, people who are carers of others who are weak or vulnerable, employers upon whom workers depend for their livelihood, and others, in a variety of circumstances, whose incarceration will cause hardship to third parties."
Clearly and in accordance with principle, this matter like all others must be determined, and the offender sentenced, having regard to the particular circumstances pertaining to him and to the offences to which he has pleaded guilty.
After much consideration I am satisfied that the hardship that will be caused to the offender's family is not of such an exceptional, unusual or extraordinary nature as to warrant it being given significant weight. I have come to this conclusion bearing in mind the remarks of Wells J in Wirth (supra) as to how this issue is to be treated where general deterrence is a significant factor in sentencing for a particular offence, as it is in this matter. Whilst the offenders family situation cannot be used to justify any substantial reduction in sentence via a discrete and clearly identified measure of leniency it is a matter that I am entitled to, and do take into account as part of the offenders general subjective circumstances - see R v X [2004] NSWCCA 93 per Sully J, R v Girard [2004] NSWCCA 170 per Hodgson JA and R v Nguyen [2006] NSWCCA 369 per James J.
The statutory scheme - Section 21A, Crimes (Sentencing Procedure) Act 1999
In determining the penalty to be imposed I must have regard to the mitigating and aggravating factors set out in sections 21A(2) and (3) of the Crimes (Sentencing) Procedure Act 1999. These are in addition to any factors that I may take into account pursuant to the common law.
Aggravating factors- Section 21A(2)
It appears to me that the relevant sub sections of section 21A(2) to be taken into account are:
d) the offender has a record of previous convictions,
j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence.
The offender was serving a sentence of periodic detention at the time of the commission of the perjury offence. In Porter v R [2008] NSWCCA 145 Johnson J stated that " it seems to me that the purpose of s 21A(2)(j) is to capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour"
Mitigating Factors - Section 21A(3)
It appears to me that the relevant sub sections of section 21A(3) to be taken into account are:
h) the offender has good prospects of rehabilitation.
i) the remorse shown by the offender for the offence.
I accept that the offender is genuinely remorseful, has accepted responsibility for his actions and has acknowledged the damage caused by his offending conduct.
j) a plea of guilty by the offender (as provided in section 22).
I have dealt with this aspect earlier in these Remarks.
Conclusion
I have determined as required by section 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate in respect of each offence. Mr Eardley in his comprehensive submissions finally invited me to deal with the matter by way of a community service order arguing that no useful purpose would be served by a custodial penalty, and that such a penalty would allow the offender to put something back into the community. I am of the view that these matters are far to serious to be disposed of by the imposition of community service orders and that the finalisation of the matters in that way would not satisfy my sentencing responsibility to denounce and deter.
Given my finding that nothing other than imprisonment is appropriate I must, consistent with authority determine the length of each sentence. In balancing the objective seriousness of the offending, the importance of general deterrence, the offenders subjective circumstances including the hardship that will be visited upon his mother and siblings, the various aggravating and mitigating factors to which I have referred and allowing for the 20% discount for his pleas of guilty, I have determined that the proper terms of imprisonment are;
(1) As to the three sequences of using fabricated false evidence to mislead a judicial tribunal- a period of 15 months less 20% being 12 months.
(2) As to the perjury sequence - a period of 20 months less 20% being 16 months. This takes into account the three offences that are to be dealt with by me on a Form 1 and relating to the tendering of the false fabricated references on the District Court appeal. I consider it appropriate to take these matters into account in this way.
I am now required to determine whether there is any appropriate alternative to full time imprisonment. I must consider if sentences of other than full time imprisonment would reflect the objective seriousness of the offending and fulfil the purpose of punishing the offender, the need for general deterrence, the need to make the offender accountable, the need to denounce his conduct and the need to recognise the harm that has been caused to the administration of justice. A clear message must be sent to people in the community who may be tempted to fabricate false evidence to mislead courts or worse still to blatantly lie to them, that if they are convicted then they cannot expect to be dealt with by the courts other than by the imposition of condign penalties. It is for this reason that I do not believe that a suspended sentence would be an appropriate outcome nor do I believe that this is a matter where an intensive correction order would suffice. Each of those sentencing options has an element of inbuilt leniency that would not be appropriate in the circumstances of this case. The sentences must in my view be served by way of full time custody.
I intend to partially accumulate the custodial penalties that I will impose. The offending in two different courts on two different occasions must result in some accumulation of penalty. The offending incidents although linked could not be regarded as one episode of criminality. I also regard the perjury matter as being of greater criminality it involving as it does the taking of an oath to tell the truth to a judge and then deliberately lying, and this is reflected in the longer sentence to be imposed. As Howie J said in R v Cahyadi [2007] NSWCCA 1 the question to be asked is " can the sentence for one offence comprehend and reflect the criminality for the other offence.... If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences".
I intend to impose a fixed term of imprisonment in respect of the three use fabricated false evidence to mislead a judicial tribunal matters, each of which will be served concurrently. I have determined not to fix a non-parole period having regard to the seriousness of the offending and to principles of totality.
I have determined that the sentence for the perjury matter will commence following the expiration of 8 months from the commencement of the use fabricated false evidence sentences. Without partial cumulation I do not believe that the sentences imposed would reflect the total criminality of the offenders conduct; there are in my view discrete acts of criminality involved in the different offences, and if I were to impose wholly concurrent sentences then this would fail to take account of these differences in conduct- see R v Weldon; R v Carberry (2002) 136 A Crim R 55 per Ipp JA at paragraph 48. In setting the term for the perjury matter I have been guided by the sentence imposed in Einfeld (supra) being one of twenty-one months imprisonment with a non-parole period of fourteen months. While limited use can be made of sentences from other cases which each involve their own discrete facts and circumstances such a consideration can still provide some assistance in determining what is an appropriate range for sentencing- see Zhi Xiong Chen v R [2011] NSWCCA 85 per Garling J.
I am satisfied that special circumstances exist, so enabling me to vary the statutory ratio between the non-parole period and the balance of the term and I propose to do so in respect of the perjury matter. The factors that go to special circumstances include, my determination that partial cumulation is appropriate, the fact that this will be the offenders first time in full time custody and his strong prospects of rehabilitation. I note that the effective total term of imprisonment is one of 2 years with a non-parole period of 16 months. I am satisfied that this will cause a result that adequately reflects the total criminality of the offenders behaviour in accordance with the principles set out by the High Court in Pearce v The Queen (1998) 194 CLR 610.
The Orders of the Court are accordingly as follows:
In respect of each charge the offender is convicted and sentenced to the following terms of imprisonment:
(1) As to sequences 1,2 and 3 of H 42082012 being charges of using fabricated false evidence with intent to mislead a judicial tribunal, a fixed term of 12 months commencing 20 April 2011 and expiring 19 April 2012.
(2) As to the charge of make false statement on oath amounting to perjury, a term that consists of a non parole period of 8 months and a total term of 16 months commencing 20 December 2011 and expiring on the 19 April 2013. He will be eligible for release subject to supervision on parole on the 19 August 2012.
Magistrate Christopher O'Brien
Campbelltown Local Court
20 April 2011
Decision last updated: 05 May 2011
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