Director of Public Prosecutions v Rowson
[2022] VSC 510
•15 July 2022
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0032
DIRECTOR OF PUBLIC PROSECUTIONS Crown v MARK ROWSON Accused ---
JUDGE:
Champion J
WHERE HELD:
Melbourne
DATE OF HEARING:
8 July 2022
DATE OF SENTENCE:
15 July 2022
CASE MAY BE CITED AS:
DPP v Rowson
MEDIUM NEUTRAL CITATION:
[2022] VSC 510
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CRIMINAL LAW – Sentence – Attempt to pervert course of justice – Plea of guilty following sentence indication – Relevant criminal history – Significant delay in bringing charges – Sentencing principles – Totality – Where offender already serving sentence – Consideration of total period of custody – Postiglione v The Queen (1997) 189 CLR 295 applied – Total Effective Sentence 2 months and 21 days’ imprisonment.
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APPEARANCES:
Counsel Solicitors For the Crown Mr T Wallwork Office of Public Prosecutions For the Accused Mr A Malik Pica Criminal Lawyers HIS HONOUR:
Introduction
1 Mark Rowson, on 9 June 2022 you pleaded guilty to one rolled-up charge of attempting to pervert the course of justice. On 25 and 26 of June 2015, you attempted to mislead a judge of the County Court of Victoria by writing a false reference for submission to the Court in the plea hearing of Anthony Nicholls. As will be explained, the ‘rolled-up’ charge encompasses the consideration of a number of acts that you carried out on different occasions.
2 The maximum penalty for the offence of attempting to pervert the course of justice is 25 years’ imprisonment.[1] This maximum penalty reflects the seriousness with which Parliament treats this particular conduct. At the same time, it is to be acknowledged that there are a wide variety of activities that can make up an attempt to pervert the course of justice and regard must therefore be had to the particular circumstances that each example of this type of conduct represents.
[1]Crimes Act 1958 (Vic) s 320.
Circumstances of the offending
Background to the offending
3 On 7 May 2015, Anthony Nicholls pleaded guilty in the County Court to three charges of breaching his duties as a Director. Nicholls was a friend of yours.
4 In anticipation of the plea hearing for Mr Nicholls you wrote a character reference for him, relating to his work as the General Manager of a company, The LifeGene Project. The character reference extolled Mr Nicholls’ virtues and work. It was unsigned but claimed to have been endorsed by four people:
·Dr James Best – Head of Melbourne Medical School;
·Professor James Bailey – Department of Computing and Information Systems, University of Melbourne;
·Associate Professor Marcel Dinger – Garvan Institute of Medical Research in Sydney NSW; and
·Associate Professor Andrew Lonie – Life Sciences Computation Centre hosted by the University of Melbourne.
First attempt to pervert the course of justice
5 On 25 June 2015, the unsigned letter was provided to a judge of the County Court in the course of Nicholls’ plea hearing. The hearing was adjourned to allow for the reference to be signed.
6 During June and July 2015, you and Mr Nicholls’ barrister were in email contact regarding getting the reference letter signed. You confirmed the listed people were willing to sign the reference and provided their email addresses. All of the email addresses ended in ‘lifegene.com.au’.
7 Mr Nicholls’ barrister spoke to people purporting to be Associate Professors Lonie, Bailey and Dinger by telephone and they all confirmed they were willing to sign the reference. The real identity, or identities, of the person or persons the barrister spoke to are unknown.
8 In July 2015, Dr James Best was removed from the letter but signatures were added for the three Associate Professors. A copy of the signed letter was emailed to the barrister on 27 July 2015.
9 You advised Mr Nicholls’ barrister you would attend court to support Nicholls and bring the original signed letter. The letter was put in a plain envelope and pushed under the door of his barrister’s chambers.
Second attempt to pervert the course of justice
10 On 27 July 2015, the barrister provided the signed letter to the Commonwealth Director of Public Prosecutions and confirmed he had spoken to those people purporting to be the real individuals nominated as the signatories. A copy of the signed letter was then forwarded to ASIC Senior Investigator, Owen Davies.
11 Mr Davies then contacted the three signatories, that is, the real people. All three confirmed that they had not signed the reference and knew nothing about it. With that confirmation it was clear that the letter which was attempted to be placed before the County Court judge, and relied on by Nicholls, was false and misleading. The purpose of doing this was to mislead the Court.
12 These facts as described above amount to the charge to which you have pleaded guilty, and are accepted to be in the form of the rolled-up charge on the Indictment, the charge encompassing acts occurring on separate occasions.
13 A special mention was then called before the sentencing judge on 28 July 2015 to advise that none of the alleged signatories knew of the reference. The plea hearing was adjourned.
14 An ASIC company search on LifeGene International indicated neither you nor Nicholls were connected with the company. The company’s website listed organisations connected with the alleged signatories as project partners. The project partners had no formal partnerships with LifeGene, yourself, or Mr Nicholls.
15 The three signatories all provided their signatures for reference, which did not match the signatures on the reference letter. However, Associate Professors Lonie and Dinger were both able to recognise you and Nicholls from when the LifeGene project idea was previously presented to them. Needless to say, the real persons nominated as referees in the fake reference were entirely innocent of any wrongdoing.
The police investigation
Record of interview
16 You were subsequently interviewed by police on 9 September 2015. At your interview, you said that you ran LifeGene International. You said that when Nicholls asked for a reference you spoke to your employee, Nick Chaoyi, about whether people at Melbourne University would support a reference for him. You said Chaoyi organised the signing and Skype calls with all the signatories so that you could explain what was going on. You said he had a Skype call with all four proposed signatories. You said you drafted the reference, signed it, and gave it to Chaoyi to edit and be signed.
17 You said you thought nothing more of it but when the court hearing was delayed because of the letter you sought to ask Chaoyi what happened but he had disappeared. You said Chaoyi must have sent the emails that purport to be between you and Nicholls’ barrister as he had asked Chaoyi to organise everything. You said you thought Chaoyi signed the others’ names.
18 You said you no longer had Chaoyi’s number as he had reset his phone and deleted it. You maintained that Chaoyi exists as you knew where he lived and people have met him, including your mother and other friends. You said Chaoyi also lived for a period with Peter Murchie, a friend of yours but who is now deceased.
19 As to the employment of Chaoyi, you said he was paid in cash but as the company does not have a bank account you could not show it as he had taken the records from the filing cabinet. You said Chaoyi deleted all the emails off the server. You said Chaoyi was responsible for organising most things as you relied heavily on him. Chaoyi was also said to be responsible for the website. You said you did not like the administration, you only write software for modelling 3D human genomes and other things. Chaoyi apparently had complete access to your emails, the website, and mail server. You said the email addresses for the signatories were set up by Chaoyi.
20 You said the company had at least $270,000 which your deceased friend, Murchie, had invested as well as money from your parents. You said you thought Chaoyi stole it. You said you did not know because Chaoyi took all the files which relate to invoicing.
21 You denied that you were using Chaoyi as “a fall guy” and that he had been responsible for the signing of the reference.
22 It is clear that many of the assertions you made to police in your interview were false.
Search Warrants and Subsequent Enquiries
23 On 25 September 2015, a search was carried out on your parents’ house, from which you carried out your work. Police found a home office with many boxes and papers, including full filing cabinets. Police do not believe there were any gaps to indicate folders or documents had been removed. None of the documents at the house referred to LifeGene Project or Chaoyi.
24 Police also made contact with various universities that you had said you worked with or dealt with. Those that responded said they had no involvement or agreement with you, Nicholls, or LifeGene Project.
25 Police did various searches and nothing indicated Chaoyi existed. Associate Professor Lonie said he had only dealt with you. A Facebook account alleged to be Chaoyi’s only had basic information, and was only accessed from your father’s address. An iiNet account was set up in 2014 under Chaoyi’s name but the phone number was yours and the credit card used was for Peter Murchie. This included payments on the credit card of Peter Murchie after Mr Murchie was admitted to hospital shortly before his death. No government departments or White Pages have records of Chaoyi at his alleged address.
26 You were ultimately charged in relation to your offending on 14 August 2019. Intervening events between the offence and the charges is explained below under the section titled ‘criminal history’.
Procedural history
27 Subsequent to a committal proceeding, an indictment was filed in the County Court of Victoria. On 14 January 2022, the matter was uplifted to be heard in this Court.[2] On 18 February 2022, upon your application, a sentence indication hearing was heard before me on 27 May 2022,[3] and I delivered an indication shortly thereafter.
[2]Criminal Procedure Act 2009 (Vic) s 167.
[3]Ibid Part 5.6.
Personal circumstances
Background
28 You were born on 29 June 1967. You are currently 55 years old. At the time of these offences you were 48 years old.
29 Your parents had a difficult relationship, punctuated by violence and infidelity, which resulted in you having to take responsibility for your three younger brothers for extended periods.
30 You began but did not complete an Arts degree at university. You subsequently began working for others and for yourself, including at an import/export business, as a paralegal at your father’s legal practice, in engineering, in IT, and in hospitality.
31 You have been married twice, and now have two daughters, aged 16 and 18.
Criminal history
32 You have a number of convictions for past criminal offending. These largely relate to offences of dishonesty, but also include an unlawful assault recorded without conviction in 2015.
33 In 2006, you pleaded guilty to one count of obtaining a financial advantage by deception and one count of attempting to obtain a financial advantage by deception[4]. You lodged false business activity statements with the ATO in order to claim a $2,453,102 refund. You also attempted to claim a further refund of $1,333,173. You did so by creating non-existent businesses, falsifying documents, and creating and holding yourself out to be various fictitious people. You used the obtained money to fund another business, travel overseas and entertain clients. You were initially sentenced to three years and one day’s imprisonment, with a non-parole period of 18 months. On appeal by the Commonwealth Director of Public Prosecutions against the leniency of the sentence you were resentenced to five years’ imprisonment with a non-parole period of three years.
[4]DPP (Cth) v Rowson [2007] VSCA 176.
34 In 2018 you were found guilty by a jury of three charges of obtaining a financial advantage by deception and 23 charges of theft.
35 The offending was against your deceased friend, Peter Murchie. Mr Murchie became terminally ill with cirrhosis of the liver in late 2013, and died in December 2014. From July 2013 until early 2015, you used Mr Murchie’s identity to defraud him and his estate. In particular, you falsified documents, records, signatures, moved money between legitimate and fraudulently set up bank accounts, and held yourself out to be Mr Murchie to various people in order to:
·fraudulently obtain two loans of $175,000 and $75,000 in July 2013 and $75,000 in March 2014;
·make multiple online transfers of money from Mr Murchie’s legitimate pension account to a fraudulent account in Mr Murchie’s name, controlled by you, totalling $6,450;
·apply for and use a credit card in Mr Murchie’s name in August 2014;
·make payments from Mr Murchie’s legitimate pension account totalling $10,057 in November 2014; and
·make a further payment of $869 from Mr Murchie’s legitimate pension account using a fraudulent direct debit authority change in early 2015.
36 You used the money on yourself and your family, including to pay your daughter’s private school tuition, pay your outstanding accounting fees, and pay for a holiday to Queensland.
37 The fraud was not discovered until after Mr Murchie had been admitted to hospital. Ms Murchie began making enquiries on Mr Murchie’s behalf, having been appointed executor of his will. It was discovered by her investigations that the title to their home had been released to you when you falsely purported to be Mr Murchie and that accounts had been fraudulently set up in Mr Murchie’s name.
38 You were sentenced by his Honour Judge Trapnell on 5 December 2018.[5] You were sentenced to 63 months and 14 days’ imprisonment, with a non-parole period of 47 months and 14 days. You are currently serving this sentence, which will end on 5 August 2022.
[5]DPP v Rowson [2018] VCC 2051.
39 You were charged with the current offences before this Court while serving the sentence imposed by Judge Trapnell.
Physical and mental health
40 You have ongoing medical conditions, particularly atrial fibrillation, hypertension, and asthma. In September 2018, you were released on strict bail conditions, and your sentencing regarding other charges was adjourned, for you to seek medical treatment for your atrial fibrillation. You underwent multiple procedures in 2018. You continue to be treated for this condition.
41 A psychological report by Carla Ferrari dated 17 January 2022 was relied on in this matter. The report had been produced in relation to your parole eligibility, but contains information that is relevant to your plea and sentence in this matter. She noted you self-reported a previous diagnosis of bipolar disorder, which could not be determined at the time, and current symptoms for generalised anxiety disorder and major depressive disorder.[6]
[6]Report of Carla Ferrari dated 17 January 2022, filed 4 March 2022, page 7.
42 Further, Ms Ferrari noted you suffer from alcohol use disorder, presently in remission but current at the time of offending. She opines that substance abuse can impair cognitive ability, result in emotional dysregulation, disinhibited and poorly considered behaviour, and increased risk of criminal misconduct. She expressed the opinion that alcohol abuse was a significant factor during the period of your offending, there is a nexus between your mental health deterioration, alcohol misuse, and offending which occurred due to increased psychosocial stress.[7]
[7]Report of Carla Ferrari dated 17 January 2022, filed 4 March 2022, pages 7-8.
43 In his sentencing remarks of 2018, Judge Trapnell noted the opinion of psychologist Dr Aaron Cunningham. His Honour recorded Dr Cunningham’s evidence as being that:
your profile ‘indicated traits of narcissism … expressed in a preoccupation with immature and self-glorifying fantasies of success that are minimally constrained by objective reality’. He further opined that these traits have led to ‘difficulty empathising and connecting to others in relationships’
44 It was also noted that you did not present with symptoms of depression or anxiety at the time Dr Cunningham assessed you. No mention was made of Bipolar Disorder. Judge Trapnell ultimately found there was insufficient evidence to find your character traits were sufficiently casually connected with the offending or that the principles set out Verdins case were engaged.
45 Further, I note your mental health history was also detailed by the Court of Appeal in DPP (Cth) v Rowson [2007] VSCA 176, which included speculations of bipolar disorder, an enduring personality disorder, and substantial abuse of alcohol, but no formal diagnosis. Kaye JA determined that the speculative “provisional diagnosis” given were insufficient to apply the principles articulated in Verdins case and would only provide a relatively small degree of mitigation.[8]
[8]DPP (Cth) v Rowson [2007] VSCA 176, paragraphs 16-17 and 27-31.
Prosecution Submissions
46 The prosecution submitted that the maximum penalty set by the parliament is indicative of the seriousness of the offence.
47 Further, noting that the paramount duty of Counsel to the court is one of utmost candour, the observance of this duty is an essential feature of the proper and efficient administration of justice. It was submitted that your actions in committing the offence were calculated to mislead both Counsel for Mr Nicholls and the sentencing judge. In such circumstances, it was submitted that general and specific deterrence, and denunciation will be of significant weight in the sentencing equation.
48 It was therefore submitted that an appropriate sentencing response is that of a sentence of imprisonment. It was submitted that a sentence of imprisonment, but with moderation as to sentencing considerations such as totality and other subjective considerations, is an appropriate sentencing response.
Defence submissions
Seriousness of offending
49 On your behalf it is submitted that the offence of attempting to pervert the course of justice may ‘embrace a wide spectrum of criminal conduct’[9] and that sentences may vary widely based on individual circumstances. I was urged to accept that your offending should be situated at the low to medium level of seriousness for this type of offending.
[9]DPP v Aydin & Kirsch [2005] VSCA 86, at [26].
50 Your Counsel referred to R v Buscema,[10] in which Nettle JA said that the circumstances which bear upon the assessment of the nature and gravity of this particular type of offending, and so upon the sentence to be imposed on you, include the following:
[10][2011] VSC 206.
(a) The consequence which the offending was calculated to avoid;
(b) The time for which the deception was maintained and whether it was actively repeated or persisted in or merely allowed to continue;
(c) Whether the deception involved some other person, either as an accomplice or as a victim;
(d) Whether there was any threat or violence involved;
(e) Whether the offence was spontaneous or premeditated;
(f) Whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that.
51 In the present case, it is submitted that the period of offending was relatively short, occurring over a two day period.
52 While it is conceded that the conduct was planned and premeditated and sought to interfere with the sentencing process, your Counsel emphasised that it is not alleged that you obtained any personal advantage from this conduct.
Verdins
53 With respect to your mental health it is submitted the fifth limb of Verdins is enlivened by your diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder.
54 I note that the report of Carla Ferrari was produced in relation to your eligibility for parole. She recorded a diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder and says “it is considered that remaining in custody without a period of parole would likely weigh more heavily on Mr Rowson than a person without his conditions”.[11] She also noted that “it is also considered that his symptoms will continue to be exacerbated whilst he remains in the volatile custodial environment, particularly in the current climate.”[12]
[11]Report of Carla Ferrari dated 17 January 2022, filed 4 March 2022, page 8.
[12]Report of Carla Ferrari dated 17 January 2022, filed 4 March 2022, page 9.
Rehabilitation
55 The defence make no submissions regarding rehabilitation, however, I note the report of Carla Ferrari says your risk of reoffending is considered low.[13] This is relevant to your prospects of rehabilitation.
[13]Report of Carla Ferrari dated 17 January 2022, filed 4 March 2022, page 8.
Delay
56 The alleged offending occurred almost seven years ago. You were first interviewed by police on 9 September 2015 but were not charged until August 2019, about four years later. Since being charged you have had three vacated trial dates in the County Court.
57 Your Counsel submitted that the delay was not attributable to anything that you have done. It was submitted that the delay and the period during which you had this prosecution hanging over your head should be taken into account as mitigating factors.
Hardship in custody
58 With respect to your time in custody it was submitted that this time has been more onerous due to your diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder, the reduction in programs and treatments during the pandemic, the suspension of personal visits during the pandemic, your anxieties about COVID-19 in light of your health difficulties, delays in receiving medical treatment which you believe is the result of your litigation against the Department of Justice and Community Safety, an assault against you in 2019, and witnessing severe and frequent violence in prison.
59 Further, it was put on your behalf that your 77-year-old mother is awaiting some shoulder surgery and hip reconstruction. As you are her only support, she requires your assistance for her rehabilitation and is unable to undertake these medical procedures until you are released from custody. This is a further circumstance that can be taken into account in terms of hardship experienced in custody, and I give it a modest degree of weight.
Totality
60 You have been in prison since 15 March 2018. You are currently serving a sentence in relation to obtaining a financial advantage by deception and theft, which will end on 5 August 2022. This means that as at the date of sentencing, the total period of concurrency available to the sentencing court is 21 days.
61 Your Counsel directed the court’s attention to the Court of Appeal’s remarks in Mang v The Queen [2022] VSCA 10 in relation to the application of the totality principle in circumstances where the offender being sentenced is already serving a sentence:
The principles according to which a sentence must be imposed when the person is already under a sentence for other offences are not in doubt. In Postiglione v The Queen, McHugh J said:
The application of the totality principle … requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only for the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
62 Your Counsel further referred to the matter of DPP v Bowen [2022] VSCA 10, in which the Court explained that the ‘extension’ of the totality principle described by McHugh J applies to any case where the offender being sentenced is already serving a sentence. The Court said:
In such a case, totality requires that the total criminality involved in both sets of offences be compared with ‘the total period to be spent in custody’ under both the existing and the proposed sentence. That total period should ‘fairly represent’ the total criminality involved in all of the offences.
Postiglione thus formulated a test of ‘full proportionality’ for the case of an offender already serving a sentence. That is, the full period of custody under the two sentences (existing and proposed) should be proportionate to the total criminality involved in the two sets of offences.
63 Accordingly, it was submitted that the principle of totality requires that where there is an insufficient overlap between an existing and new sentence, the new sentence will require moderation.
64 On your behalf it was submitted that the available period of concurrency in the present case may not be sufficient and that the sentence for this offence will require moderation due to the overlap with the existing sentence. Furthermore, that an approach of moderation should take into account the total period you have been in custody, the hardships in custody due to the pandemic and your health, that any plea would be made during the pandemic, and the delays associated with this matter.
Plea of guilty
65 It was submitted that any plea of guilty is of significant utilitarian value given the comments of the Court of Appeal in Worboyes v The Queen[14] as to the value of a guilty plea during the COVID-19 pandemic. In that context it was argued that there were a number of triable issues in this case, including the authorship of the addresses, the creation of the email addresses, the discussions with the legal representatives for Mr Nichols, involvement of others in that process, the placing of the signatures on the references, and the physical delivery of the reference to the legal representative of Mr Nichols. However, it was acknowledged this is not a case where the evidence is so weak that the value of a plea might be enhanced, and therefore be of further mitigatory value.
[14][2021] VSCA 169 (18 June 2021).
66 Further it was submitted on your behalf that these issues could be linked to the Court’s evaluation of the utilitarian value of the plea in light of the significant backlog of trials in the time of the pandemic.
The offence and comparable cases
67 Attempting to pervert the course of justice is a common law offence which carries a maximum penalty of 25 years’ imprisonment.
68 It was accepted on your behalf that the only sentence available in this case is imprisonment.[15] A number of past sentencing decisions were referred to on your behalf, and I have regard to those cases. [16] Some of the cases referred to involved similar conduct to that committed by you.
[15]Defence submissions, paragraph 3.
[16]Summaries of matters are taken from Judicial College of Victoria case summaries page, not provided by parties.
Analysis and conclusions
Seriousness of the offending
69 As to the nature of your offending it is beyond doubt that attempts to pervert the course of justice must be taken seriously. In this instance your actions were designed to mislead a sentencing judge and doubtless intended to have the effect of passing a more merciful sentence on the offender than was appropriate. As noted, a paramount duty of Counsel to the court is one of utmost candour, and the observance of this duty is an essential feature of the proper and efficient administration of justice. Your conduct also involved misleading the barrister presenting the submissions to the Court, and thereby the court to be misled by Counsel unknowingly advancing submissions on an incorrect basis. The courts rely on Counsel to present honest and reliable submissions, based on the truth. The system operates in that way and your actions were designed to pervert how the system operated properly. The community expects the workings of the courts to be beyond reproach. In such circumstances, it is submitted that general deterrence, specific deterrence and denunciation will be of significant weight in the sentencing equation. I agree with that submission. I also accept the submission of the prosecution that your offending involved a degree of thought, planning and premeditation, albeit taking place over a relatively short period. It could not be said to have been conducted on the spur of the moment as you had plenty of opportunity to reflect on what you are doing.
70 It is important for me observe that neither party in these proceedings sought to submit that any blame for what occurred at your hands should be attributed to the barrister that appeared on behalf of Anthony Nicholls in June 2015. It is clear that the attempt to pervert the course of justice that you carried out involved the need to deceive Nicholls’ Counsel. I am quite satisfied from what I have observed that his Counsel acted with diligence, and with appropriate honesty at all times.
71 Furthermore, you have relevant prior convictions involving previous offences of dishonesty, some of which are quite serious in their nature. I have noted those above. I have taken that history into account insofar as it has an impact on the prospects of your rehabilitation, and the need for specific deterrence, and the protection of the community.
72 The above noted, it was submitted on your behalf that your offending sits at the low or medium level of seriousness for this type of offending. It is noted that the period of your offending was relatively short, occurring over a two-day period. I also note that the offending was ultimately unsuccessful in that it appears that the sentencing judge was suspicious at the outset, and because of events that took place, eventually was not misled as your offending was discovered, or at least under investigation, before sentence was passed on your friend.
73 I am also satisfied that there was no monetary gain intended by your offending. Otherwise, your motivation to act in the way you did to support your friend remains somewhat unclear. I am unable to conclude that it extended to anything more than appearing to do a favour for your friend.
Mitigating factors
74 Having noted the seriousness of your conduct, in your case there are a number of mitigating factors of significance. You are now 55 years of age. At the time of this offending you were 48. As well as your ongoing medical conditions, you experience a number of mental health issues which I have discussed above. I am unable to find that your mental health issues contributed in a relevant or causative way to your offending conduct, and accordingly cannot engage a number of the earlier principles set out in R v Verdins. I am nevertheless satisfied that your ongoing medical conditions and mental health issues have contributed to the hardship you have experienced in the serving of the sentence that you are now undergoing, as well as making the serving of the sentence that I will impose on you today more onerous. In that sense, I accept that the fifth limb of the Verdins principles is engaged.
In your case I am satisfied there has been an inordinate delay between the time when your offending came to light until now. It appears that over seven years has passed since an investigation was launched into your conduct. A number of reasons were advanced as to why this period of time elapsed, and indeed there may be a number of factors that acted in combination to extend the period of this matter. However, in my opinion this period of extended delay acts in your favour in the assessment of the appropriate sentence to be passed. You are now considerably older than when the offending was committed, your health has declined somewhat, and you are currently serving a significant sentence of imprisonment which is expected to conclude on 5 August 2022. I am also satisfied that the delay is a factor that will have weighed on your mind for a considerable period of time.
76 Given the factors that I have discussed, particularly your age, the delay, and the period of time for which you have now been imprisoned I must take into account the principle of totality, which requires me to take a step back and make an assessment of the impact of the sentence I will impose upon you today, in light of the sentence you are now serving. In assessing the appropriate sentence I have taken into account this principle in your favour.
Sentencing practices
77 I have had regard to a number of past sentencing decisions of cases involving attempts to pervert the course of justice.[17] As is always the situation, every case must be evaluated in light of its particular circumstances pertaining to the offences, and to the offender. In the end the assistance to be gained from a consideration of past cases reveals that there are a wide range of sentences imposed, from significant terms of imprisonment to community based orders. No discernible pattern appears to emerge, reinforcing my view that that such an examination is of limited assistance.
[17]See e.g. Hill v The Queen [2021 VSCA 349; Saleem v R [2014] VSCA 190; Zotos v R [2014] VSC 324; DPP v Fairclough [2020] VCC 152; DPP v Piccolotto [2020] VCC 1401; DPP v Harle [2019 VCC 982; DPP v Anastasi [2019] VCC 1544; DPP v Feltham [2018] VCC 1187; Lam [2017] VCC 612; Elliott [2017 VCC 748; Goodland [2016] VCC 1694; Foster [2016] VCC 1257; Wilson [2016] VCC 922; McLean [2017] VCC 1648.
Role of the sentencing indication
78 It is also appropriate to observe that whilst this matter was uplifted to be heard in the Supreme Court and was originally contested, the matter resolved with your plea of guilty to the rolled up charge in the Indictment. Your plea of guilty occurred following a sentence indication given by me as to the maximum penalty that would be imposed in the event that you did decide to enter a plea of guilty. In the circumstances I concluded that I would not impose a sentence that exceeded six months imprisonment. The plea hearing now having taken place, in all the circumstances I see no reason why that indication should change.
Conclusions
79 Your counsel submitted that it was open to impose a sentence of up to six months imprisonment that was fully concurrent with the sentence that you are now serving. However, it was also realistically acknowledged that a degree of cumulation may need to be ordered. The prosecution submitted that the sentence to be imposed should involve a further period of custody following the expiration of your current sentence. In all the circumstances, I agree with the submission of the prosecution. Whilst I acknowledge the length of the sentence you are now serving, and taking into consideration mitigating factors and the principle of totality, I am of the opinion that you must serve a further period to represent appropriate denunciation of your conduct, and to give due recognition to the aspect of general deterrence. I do acknowledge there are a number of factors when taken together that require moderation to the ultimate sentence to be imposed on you. The imposition of further time will serve as a clear message that attempts to pervert the course of justice are to be taken seriously and in many instances will result in a custodial consequence.
80 As I have noted, you are to be released from your current sentence on 5 August 2022. Had that not been the case, and your sentencing had occurred at an earlier stage, in all the circumstances I would have sentenced you to a period of six months imprisonment as the appropriate sentence to be passed and after weighing all the relevant factors. I would have ordered four months of that period to be served concurrently with the sentence that you are now undergoing, then leading to the outcome that you would have served an additional two months imprisonment by way of cumulation. These circumstances are made complicated by your expected release date which is now approximately three weeks from today, effectively preventing the course that I have envisaged, as there are only approximately three weeks that were available in your present sentence against which an order for concurrency could have been made. In the unusual circumstances that you now find yourself in, I will therefore sentence you to two months and 21 days’ imprisonment.
81 I order that 21 days of that period be served concurrently with the sentence you are now undergoing. This should lead to the outcome that you will serve a further period of two months’ imprisonment after the expiration of the sentence you are now undergoing.
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