Director of Public Prosecutions v Wickes
[2023] ACTSC 296
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Wickes |
Citation: | [2023] ACTSC 296 |
Hearing Dates: | 12 September 2023, 11 October 2023 |
Decision Date: | 18 October 2023 |
Before: | Loukas-Karlsson J |
Decision: | (1) On the charge of attempt to pervert the course of justice contrary to s 713(1) of the Criminal Code 2002 (ACT), by virtue of ss 44 and 46 of the Criminal Code 2002 (ACT) (CC2023/1127), Mr Benjamin Wickes is convicted and sentenced to 6 months and 12 days’ imprisonment to commence 23 April 2023 and expire 3 November 2023. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt to pervert the course of justice – where offender provided false instructions to duty solicitor on bail application – compelling subjective circumstances – drug use as motivation for offending – real prospects for rehabilitation – whether imprisonment on remand is “lawful custody” for the purpose of s 64 of the Crimes (Sentencing) Act 2005 (ACT) – s 64 applies – no nonparole period imposed – direction under s 72(3) of the Crimes (Sentencing) Act 2005 (ACT) – sentenced to term of imprisonment |
Legislation Cited: | Bail Act 1992 (ACT) s 9D |
Cases Cited: | Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 |
Parties: | Director of Public Prosecutions Benjamin John Wickes ( Offender) |
Representation: | Counsel M Dyason ( DPP) T Sharman ( Offender) |
| Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 26 of 2023 |
LOUKAS-KARLSSON J:
Introduction
1․Mr Benjamin Wickes (the offender) entered a plea of guilty to the offence of attempt to pervert the course of justice contrary to s 713(1) of the Criminal Code 2002 (ACT) (Criminal Code), by virtue of ss 44 and 46 of the Criminal Code. The maximum penalty for this offence is seven years’ imprisonment.
2․The offender came before me for sentence on 12 September 2023. Written submissions were provided to chambers by the parties following this hearing, and further oral submissions were made on 11 October 2023.
Agreed facts
3․The agreed facts are set out in the Statement of Facts tendered by the prosecution. The agreed facts may be summarised as follows.
4․On 29 December 2021, the accused was arrested in relation to three separate offences.
5․On 31 December 2021, the offender made an application for bail in the ACT Magistrates Court. The offender instructed Mr Perkins, who appeared on his behalf on a duty basis. At the time of the bail application, the offender was subject to s 9D of the Bail Act 1992 (ACT) (Bail Act) as a result of having been on bail for charges of a similar nature in New South Wales (NSW).
6․Section 9D of the Bail Act requires that, where an offender is making an application for bail for serious offences that were committed while charges in relation to other offences were pending or outstanding, the Court must be satisfied that special or exceptional circumstances exist which favour the granting of bail.
7․The offender falsely instructed Mr Perkins, who subsequently submitted to the Court that the offender had varicose veins and had a surgical operation booked on 18 January 2022 to address the issue at the Royal North Shore Hospital in NSW.
8․The offender relied upon the pending operation as a special or exceptional circumstance in favour of the grant of bail pursuant to s 9D. At hearing on 31 December 2021, Magistrate Lawton (the Magistrate) indicated to parties he was “struggling to see where special or exceptional circumstances had been established”. In response, Mr Perkins further submitted to the Magistrate, as instructed by the offender, that the offender “was worried that if [the operation was] put off again he might not receive the operation until quite some time in the future”, placing him and his employment in “even more difficulty”. Mr Perkins further submitted that the offender had not been able to continue with his employment due to pain in his leg and that the offender was concerned about “the long-term issues in terms of a successful operation”.
9․The Magistrate gave the following ex tempore reasons for declining to hear the bail application on that date:
This is an application for bail by [the offender] in respect to a series of charges. Most of them are summary only charges, but there is a charge of driving whilst – driving a motor vehicle without the consent of the owner, which carries a maximum penalty of five years’ imprisonment, which is under the legislation, a serious offence.
[The offender] is subject to section 9D of the Bail Act in that he is currently on bail in respect to a charge with a similar nature in New South Wales. This morning he has made an application for bail before me. It is submitted that his need for surgery on varicose veins in his leg would amount to special or exceptional circumstances. I am not of the view that that is at this stage, special or exceptional circumstances. That threshold not being established, the court declines to hear a bail application.
10․The matter was then adjourned to 10 January 2022 for the continuation of a part-heard bail application before the Magistrate.
11․The offender was returned to the Alexander Maconochie Centre (AMC) following the hearing on 31 December 2021. That same day, the offender contacted his mother via the AMC admissions telephone. The offender stated that he was subject to s 9D of the Bail Act and that he had told the Court he had an operation booked. The offender later requested his mother book an appointment, describing on the phone to his mother what he proposed to say with respect to an appointment for his leg.
12․On that same date, the offender called another individual using the AMC admissions telephone. The offender asked this individual if she had spoken to his lawyer, and the individual indicated she had “started” the process of booking the offender an appointment at a “private practice”. The individual expressed to the offender that her conduct in assisting him had been met with disapproval from her mother and others.
13․On 10 January 2022, the offender appeared before the Magistrate for the continuation of the part-heard bail application. Counsel for the offender appearing on this occasion (not Mr Perkins) handed up to the Magistrate confirmation of an initial referral to a surgeon, as opposed to confirmation of the surgery proceeding (which was indicated at the previous hearing to have been scheduled in either late January of early February 2022). The Magistrate recalled that the matter had been adjourned on 31 December 2021 for the purpose of confirming details of the already planned surgery.
14․It was also clarified at the hearing on 10 January 2022 that the offender was no longer subject to s 9D of the Bail Act as a summary election had been filed in relation to the charges in NSW.
15․On 3 August 2022, in response to an executed search warrant pursuant to s 3E of the Crimes Act 1914 (Cth), the Acting Deputy Department Manager for Health Information Services at the Royal North Shore Hospital produced a letter to the Australian Federal Police stating that the hospital held ‘nil records’ for the offender. It was confirmed that the offender had not attended or been booked in to attend the Royal North Shore Hospital since 2008.
Objective seriousness
16․Offences of perverting the course of justice are serious offences that “strike at the very heart of the justice system”: Marinellis v R [2006] NSWCCA 307 (Marinellis) at [10], R v Pangallo (1991) 56 A Crim R 441 at 443.
17․Drawing on the comments of Murrell CJ in R v Summers; R v Miller (No 2) [2019] ACTSC 11 at [18], the prosecution correctly submitted the following factors are relevant when considering the objective seriousness of an offence of attempting to pervert the course of justice:
(a)The level of premeditation;
(b)The context and/or motivation in which the offending occurred; and
(c)Whether any pressure was applied to others to assist in the commission of the offence.
18․In relation to premeditation, the prosecution correctly submitted that the offending could not be considered spontaneous. The offending persisted over a number of days and the offender engaged in conduct to further the initial offending on three separate occasions. Counsel for the offender submitted that “there was some planning” involved in the offending, but that the planning was “simple in its execution”. I agree that there was planning of a not particularly sophisticated level.
19․In relation to the context and motivation for the offending, the prosecution submitted the offender was “in a precarious position when it came to his liberty” as a result of having been afforded the opportunity for bail, and then having allegedly committed further serious offences. As stated earlier, the offender needed to demonstrate that special or exceptional circumstances applied under s 9D before bail could be reinstated. The prosecution correctly submitted that the offender prioritised his liberty over the administration of justice. In oral submissions, the prosecution accepted that the context in which the offending occurred was “in the throes of a significant drug addiction”, motivated by a desire to return to the community to access drugs. The context and motivation are not in dispute.
20․In relation to pressure being applied to third parties, the offender clearly attempted to apply pressure on other persons to assist in the commission of the offence. This is evidenced in the recorded phone calls with his mother and the other individual. While the pressure was not so significant as to force compliance by his mother, the prosecution submitted it was nevertheless a relevant consideration as it speaks to the lengths the offender was willing to go to in order to carry out this offence. I agree it is relevant to my consideration of objective seriousness.
21․I note that the offender attempted to engage three other persons in the commission of the offence (the duty solicitor, his mother and the other individual). Two of the individuals knew what the offender was purporting to do was dishonest. Mr Perkins, a duty solicitor engaged to represent the offender, did not. The offender lied to his legal representative so that false submissions could be made to a Court.
22․The lack of success of an attempt to pervert the course of justice offence is of “less significance” than in the case of sentencing for an attempt to commit some other substantive offence: Taylor v R [2007] NSWCCA 99 (Taylor) at [25]. See also: R v PFC [2011] NSWCCA 117 at [66]-[67], applying Taylor.
23․It is accepted that it is the tendency of the conduct which is relevant, not whether the conduct brings about a miscarriage of justice: Marinellis at [8].
24․Counsel for the offender correctly submitted that an intention to influence the grant of bail is generally not regarded as being as serious as an intention to prevent a trial or sentencing proceeding: see Finnie v Regina and Regina v Finnie [2007] NSWCCA 38 (Finnie) and R v Moore [2012] NSWCCA 3 (Moore). Counsel for the offender submitted that offences such as this are toward the lower end of objective seriousness concerning the wide spectrum of such offences, relying on Finney and Moore.
25․Counsel for the offender further submitted that it is important to consider the context in which the offending occurred: s 33 of the Sentencing Act. Counsel for the offender referred to the fact that, at the time of the offending, the offender had outstanding matters in NSW. Of these charges, all but one “very minor” charge was dismissed. The remaining charge was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Counsel for the offender referred to the fact that the charges to which s 9D applied in the original application for bail (then giving rise to the offence for which I am sentencing the offender) subsequently did not proceed. Counsel for the offender conceded this does not detract from the offender’s liability, and is only relevant to the context of the offending.
26․An assessment of the objective gravity of an offence has always been an essential part of the sentencing process. It must be stated that references to low, mid range and high range are unlikely to be helpful in this jurisdiction; what is required is for a Court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I note in this case that parties agreed the offending was at the lower end. I agree with that assessment of the objective gravity as it coincides with my view, considering the factors discussed above as to the level of premeditation, context and motivation of the offending, and pressure applied to others.
Subjective circumstances
27․In evidence before me is a Pre-Sentence Report (PSR) prepared for the offender which includes the following in relation to the offender’s subjective circumstances.
28․The offender first came into contact with ACT Corrective Services in 2018 when he was remanded in custody in relation to offences for which he was sentenced to four years’ imprisonment and was released on parole in February 2020. During the subsequent two-year parole period, the offender was convicted of multiple driving related offences, which resulted variously in fines, terms of imprisonment and suspension of his driver’s licence. The offender spent numerous periods in the AMC between 2018 and 2023, during which the offender received four separate disciplinary breaches.
29․The offender was reported to have engaged satisfactorily with Corrective Services during the in-custody preparation of a PSR in June 2023 in relation to other charges.
30․The PSR noted that the offender is serving a term of imprisonment in the AMC, with a nonparole period which expired on 23 August 2023. At hearing on 22 August 2023, the Sentence Administration Board (SAB) deferred the decision in relation to parole as a result of this matter being outstanding. The offender has a further parole hearing listed before SAB on 16 November 2023.
31․The offender reported he was born and raised in the Queanbeyan, NSW region. The offender resided with his mother, father and two youngest siblings until 18 years of age. The offender described a positive and supportive upbringing and described his parents’ disappointment regarding his criminal history. He disclosed occasional contact with his siblings. The offender reported separating from his ex-partner of five years in 2013. This relationship breakdown led to a drug and alcohol dependency, which contributed to criminal offending behaviour. The offender reported a supportive new relationship having commenced in January 2023 which continues despite his current incarceration.
32․The offender advised the report author that he intends to reside with his partner in her Housing ACT property on his release. Corrective Services conducted a home visit assessment on 5 May 2022 and assessed the property as being suitable accommodation for post-release and Intensive Corrections Order (ICO) accommodation.
33․The offender reported that, during his schooling, he sought attention from his peers and labelled himself as “the class clown”. His behaviour resulted in suspension and being inattentive in various subjects. The offender left school after the completion of Year 10 at the age of 16 to pursue a plumbing apprenticeship.
34․The offender advised he successfully completed his apprenticeship and worked as a plumber for several years. After losing his driver’s licence, he obtained employment as a scaffolder. The offender reported, upon being released in December 2022, he was contracting for a local plumbing business on a casual basis. The offender intends to regain employment with this same company upon his release, as he reportedly enjoyed plumbing and wishes to return to the industry.
35․The offender reported, initially upon being released he will have to rely on Centrelink payments until he obtains an ACT driver’s license. He reported having approximately $2,000 of outstanding fines.
36․The PSR author reported it appears the offender has associates involved in criminal activity. However, the offender claimed to have long-term prosocial friends who he plans to re-engage with upon re-entering the community.
37․The offender reported consuming alcohol daily to the point of intoxication following his relationship breakdown in 2013. The offender advised his alcohol use stopped being problematic at age 25.
38․The offender reported first using cocaine and a range of ‘party drugs’ at the age of 18. The offender advised that, by the age of 21 years, his cocaine use had escalated and he was using daily until 2018 when he was remanded in custody. Upon being released on parole in 2020, the offender attended Canberra Recovery Services (CRS) residential rehabilitation program for a period of two months. The offender claimed he has not used cocaine since, however began using amphetamines a few weeks after completion of the rehabilitation program. The offender utilised his time in the AMC in 2022 to complete the Solaris Therapeutic Program.
39․Upon release in December 2022, the offender reported using drugs such as MDMA and ecstasy on the weekends in social settings. The offender reported he does not believe his drug use is problematic and he reported recognising when to access support. However, the report author opined that the offender’s history indicated that substance abuse occurred in the context of “encounters with unexpected personal circumstances”.
40․In July 2023, the offender was directed to provide a urine sample which returned a negative result. The offender reported enrolling in CRS in preparation for his release into the community. This was verified by CRS in a letter dated 10 July 2023 instructing the offender to contact the service within 48 hours of his release from custody to be assessed for alcohol and drug treatment.
41․The offender reported previously playing rugby league in NSW for a period of 16 years. However, due to multiple injuries, he ceased playing in 2015. The offender claimed to have an interest in mechanics such as motorbikes and cars. He reported he spends his free time with his partner and dog, and at the gym.
42․[Redacted]. This process will reportedly require him to engage with a psychologist. [Redacted].
43․[Redacted], the offender reported no past or present mental health issues, although he said he attempted to access counselling during Covid-19 restrictions.
44․The offender accepted responsibility when asked to speak about the offence and indicated that his drug use at the time was a contributing factor to his actions. He identified a level of impulsivity and acknowledged this by reflecting on the choices he made which led to the offence. Overall, the offender demonstrated insight regarding his offending.
Pre-Sentence Report conclusion
45․The PSR author opined that the offender is a 31-year-old man with a recent criminal history. The offender has demonstrated a pattern of non-compliance and re-offending when subject to community-based orders, which remains a concern.
46․Despite this, the offender presents with a number of protective factors including stable accommodation, a prosocial family and insight into his offending behaviour, as well as reportedly good prospects of returning to full-time employment as a plumber.
47․Of concern is the offender’s recent history of drug dependency. Although the offender reported his drug use has decreased since entering custody, his resolve is yet to be tested in the community. Should the offender re-engage with a rehabilitation program upon release, it is considered likely his risk of reoffending will reduce through addressing his drug use and past trauma.
48․Taking into account the above information, the report opined that the offender was suitable for a medium level of intervention by ACT Corrective Services, commensurate with the assessed risk.
49․The offender has been assessed as not suitable for an ICO.
Evidence given by the offender at the sentence hearing
50․The offender gave evidence at the sentence hearing before me on 12 September 2023. The evidence given by the offender included the following.
51․Consistent with the PSR discussed above, the offender gave evidence that he grew up in Queanbeyan, NSW and left school in Year 10 to take up an apprenticeship in plumbing. Subsequent to this, the offender commenced full-time employment as a plumber for just under 10 years. After this time, the offender had to take up alternative employment due to drug driving offences, as discussed at [62]-[65]. The offender then commenced work in scaffolding.
52․Following his release from custody, the offender gave evidence that he intends to return to plumbing full-time and has made arrangements to do so. The offender gave evidence that he will not have his licence upon release for approximately one more year, however he has made arrangements with his previous employer to “get to work and a way to get home”.
53․[Redacted].
54․The offender nominated a desire to be released from custody to access and use drugs as the motivation for lying to the duty solicitor: “I was desperate to get out and I was using drugs and made a stupid decision to try and speed the process up”. The offender gave evidence that he last used an illicit substance in custody in April 2023 and has since returned negative urinalysis tests.
55․The offender gave evidence that he has worked with his parole officer to participate in “one-on-one counselling” in relation to drug use and “to do with trauma”. The offender has organised to access drug and alcohol rehabilitation through CRS. I note it was confirmed by counsel for the offender that the offender would undergo assessment with CRS upon release from custody.
56․In oral submissions, [redacted]. The prosecution submitted this would not rise to the level of considerations per Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), however, it contextualised “the years of abuse of alcohol and then other illicit substances”. Counsel for the offender did not make Bugmy submissions.
57․[Redacted]. The prosecution properly conceded that the drug use was a “mechanism he used to… self-medicate... the unresolved trauma that he is now in a position to face in his life”. The offender’s resolve is commendable.
58․In my view, this is a crossroads case: see R v Osenkowski (1982) 30 SASR 212. It was acknowledged by both parties that this appears to be a turning point for the offender in his life. The prosecution properly submitted that the offender appears to have, by way of paraphrase, ‘not only the best of intentions, but a plan to rehabilitate himself’ (T11.7-8).
Remorse
59․Counsel for the offender submitted it was “clear [the offender] has accepted responsibility for his offence” and showed insight into his offending. Counsel for the offender submitted this is reflected in the offender’s plea of guilty and the insight demonstrated in sworn evidence before the Court. I agree the offender gave forthright and compelling evidence.
60․The offender gave evidence at the sentence hearing that he understood the significance of his conduct for the community.
61․It is significant that the offender has given sworn evidence of his remorse and understanding of his offending: see CD v The Queen [2013] VSCA 95 at [36]; Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 at [38]-[40]. Accordingly, I ascribe significant weight to the remorse expressed.
Criminal History
62․The offender has a criminal history, including previous convictions in the ACT for aggravated burglary, use offensive weapon and damage property, which occurred in February 2018. The offender was convicted and sentenced in the Supreme Court in relation to those offences to a total head sentence of four years’ imprisonment.
63․The offender was also convicted and fined for offences of affray and assault occasioning actual bodily harm which occurred in 2016 and 2011 respectively. The offender has been charged and convicted of a number of traffic offences in the ACT.
64․The offender has also been convicted of numerous offences in NSW, most recently in 2022 for possess prescribed restricted substance, possess goods suspected to be stolen, allow use of property as drug premises, deal with proceeds of crime. Prior to this, in 2021, the offender was convicted of drive conveyance without consent of owner, goods in property suspected of being stolen and receive property stolen outside of NSW. The offender was convicted of offences of stalk/intimidate with intent to cause fear of physical harm and four counts of use carriage service to menace, harass or offend in 2016-2017. The offender was convicted of multiple counts of escape police custody in 2015 as well as a number of NSW traffic offences between 2012 and 2015. The offender was also convicted of assault police officer in the execution of duty and resist or hinder police officer in the execution of duty in 2008.
65․Counsel for the offender realistically submitted that the offender’s criminal history represents a problematic relationship with alcohol and illicit drugs.
Plea of guilty
66․Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
67․The offender entered a plea of guilty on 21 July 2023. The matter resolved during the criminal case conference and the plea of guilty was entered that day.
68․Due to administrative issues, the criminal case conference was only held the week prior to the trial which was scheduled to commence 24 July 2023. It was conceded by the prosecution that this was through no fault of the offender.
69․The prosecution accepts there was utilitarian value in the plea of guilty.
70․In Blundell v The Queen [2019] ACTCA 34 at [12], the ACT Court of Appeal stated that the utilitarian value of pleas indicated at criminal case conferencing is such that “a discount in excess of 10 percent, and almost always within the range of 15 to 20 percent, is required”. Relying on that authority, a discount of 20 percent is appropriate in this case.
Time in custody
71․The offender gave evidence that he is serving a sentence at the AMC imposed by the Magistrates Court last year. The offender became eligible for parole in August 2023, at which time the offender applied for parole. As stated earlier, the outcome of that decision by the SAB was deferred as a result of this matter before me remaining outstanding. The new date for hearing is 16 November 2023.
72․As at the sentence hearing on 12 September 2023, the offender had served 142 days of pre-sentence detention relevant to this offending. That period of detention has not been attributed to any other offending.
73․Parties agreed it is appropriate to backdate the sentence to commence on 23 April 2023. To the date of sentence, 18 October 2023, the offender has spent approximately 5 months and 26 days in custody referable to this offence.
Rehabilitation
74․Rehabilitation is an important consideration having regard to the offender being at a critical crossroads in his life. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
75․Counsel for the offender submitted concerning the important topic of what would be different now if the offender were to be released on parole in the coming months. The offender gave evidence that he now knows “that it’s going to take a lot of counselling and a lot of professional help to be put into play to fix [his drug-related offending]”. He gave further evidence in relation to the difference between then and now, stating “I’ve got a stable life on the outside, a partner. Before, I never had any of that. [I] didn’t feel secure”. The offender confirmed in evidence that he intends to reside with his partner on release.
76․Counsel for the offender made oral submissions in relation to the offender’s previous pattern of non-compliance. Counsel for the offender submitted the offender’s prospects for rehabilitation have markedly improved as a result of a number of protective factors including stable accommodation, pro-social family, insight into his offending behaviour and good prospects of returning to full-time employment. Counsel for the offender properly conceded that the ongoing concern for the offender is his drug dependency. Parties properly agreed that a period of residential rehabilitation would be of utility in this case.
77․[Redacted].
78․On the evidence, in my view, the offender has real and compelling prospects for rehabilitation.
79․Evidence of rehabilitation may mitigate the need for personal deterrence and, in my view, does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19].
Comparable cases
80․Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
81․The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
82․I was referred to the following cases by the prosecution:
(a)R v Smith (No 2) [2022] ACTSC 246
The offender in this matter was charged with one count of contravene family violence order (FVO) and one count of attempt to pervert the course of justice. Phone data collected showed in excess of 50,000 text messages between the offender and the victim between September 2018 and December 2020. The messages sent by the offender after April 2020 were in contravention of the offender’s bail conditions and the FVO. The text messages included messages from the victim reminding the offender to seek legal advice about the March 2020 charges, requesting he book into the rehabilitation courses he had indicated he would undertake and referencing the letter to the DPP in that context. Various messages show the offender attempting to coerce the victim into retracting her evidence about the March 2020 incident. The offender had a lengthy criminal history and did not express remorse for his offending. The offender failed to accept responsibility for the offence of attempting to pervert the course of justice. The offender was on conditional liberty at the time of the offences. The offender had a history of suicide attempts, alcohol and drug abuse and anti-social influences. The offender was sentenced to 14 months and 13 days’ imprisonment for the offence of attempt to pervert the course of justice, with a nonparole period for the overall sentence of 15 months. This matter was successfully appealed; however, the primary sentence was not altered: Smith v R [2023] ACTCA 23 (Smith). The nonparole period required backdating to commence at the beginning of the overall sentence; therefore, the nonparole period was increased to 2 years, 11 months and 12 days: Smith at [5], [15(3)].
(b)R v EN [2020] ACTSC 302
The offender in this matter was charged with one count of attempt to pervert the course of justice, one count of stalking and two counts of contravene FVO. This case involved a victim and offender who were in a relationship for approximately nine years. Subsequent to the relationship ending, the victim took out an FVO against the offender prohibiting contact. The offender emailed the victim and was arrested. Subsequently, the offender regularly contacted his 18-year-old son to have him provide a sworn statement saying the son sent the email from the offender’s account while the offender slept. The victim later contacted police about 258 twitter posts related to the victim and the relationship between the victim and the offender. The posts revealed specific details of the victim, her children, her new partner, and her new partner’s children. The offender also contacted the victim’s new partner on Facebook. The offender reported suffering from Post Traumatic Stress Disorder, major depressive disorder, substance disorder and anxiety. The offender maintained employment and led a pro-social life. The offender was sentenced to a GBO for two years.
(c)R v Holliday [2015] ACTSC 222
The offender was charged with two counts of kidnap and one count of attempt to intentionally pervert the course of justice. The offender in this matter was on remand in the AMC awaiting sentence for sex offences committed against two male victims. The offender incited another inmate to kidnap the two males. The offender intended to force them to recite a prepared script designed to exculpate the offender for the offences for which he was awaiting sentence and to record that recitation and provide the recording to his lawyer and apply to withdraw his pleas of guilty. The offender hoped that the DPP would withdraw the charges in light of those recordings. The offender prepared a number of written documents seeking assistance with the plan and setting out the scenarios he wanted the proposed victims to recite while being recorded. The offender reported having experienced past physical and sexual abuse and experiencing mental health difficulties. The sentencing judge assessed the offender’s prospects of rehabilitation as guarded and described the offender’s continuing denial of responsibility as “concerning”. On the charge of attempting to intentionally pervert the course of justice, the offender was sentenced to 18 months’ imprisonment. The overall sentence for the three offences (including two offences of incitement to kidnap) was 30 months’ imprisonment, with a new nonparole period of six years and nine months imposed. The nonparole period took into account the sentence imposed by Refshauge J in relation to the sex offences noted above.
83․As discussed earlier, counsel for the offender referred the Court to the NSW decisions of Finnie and Moore in relation to the objective seriousness of the offending.
(a)In Finnie, the Court endorsed an approach that an offence intended to influence the grant of bail is not generally as serious as an intended perversion of a trial or sentencing proceeding. The offender in this matter was found guilty of the charge of perverting the course of justice at trial and was sentenced to imprisonment for 18 months, with a nonparole period of nine months. The conviction was unsuccessfully appealed by the offender, and the sentence was unsuccessfully appealed by both the offender and the prosecution.
(b)In Moore, the NSW Court of Criminal Appeal dismissed a prosecution appeal for manifest inadequacy of a decision of English DCJ. The offender in the matter at first instance was convicted and sentenced for using a fraudulent letter in an attempt to vary his bail conditions. The offender in this matter had compelling subjective circumstances. Consistent with Finnie, the offence involved bail proceeding and in both cases the offending was seen to be at the lower end “seen in its proper perspective on the scale of objective gravity” (Simpson J in Moore at [35]). The aggregate sentence imposed by English DCJ of 18 months’ imprisonment with a nonparole period of 10 months was upheld on appeal.
84․Counsel for the offender noted that the relevant offence in NSW carries a maximum term of 14 years’ imprisonment, as opposed to the maximum penalty in the ACT being seven years’ imprisonment for this offence.
Statutory and other relevant considerations
85․Section 65 of the Sentencing Act obliges the Court to set a nonparole period for a sentence of imprisonment longer than one year. Section 66, in the usual course, requires the Court sentencing an offender serving an existing sentence of imprisonment to reset the nonparole period, as the imposition of the new sentence will automatically cancel any nonparole period set for the existing sentence: s 66(3).
86․However, by virtue of s 64 of the Sentencing Act, those provisions do not apply to an “excluded sentence of imprisonment”.
Section 64 of the Sentencing Act
87․An issue arose at the sentence hearing concerning the application of s 64 of the Sentencing Act to this matter. Parties provided further written submissions on the matter to chambers. Parties then made further oral submissions.
88․The prosecution submitted, contrary to the position at hearing, that s 64 “clearly applies” to these proceedings. The prosecution acknowledged that the offence to which the offender has pleaded guilty occurred at a time during which he was in “lawful custody”. The offending was designed to facilitate the offender being granted bail. Part 5.2 of the Sentencing Act deals with the imposition of nonparole periods in conjunction with sentences of imprisonment.
89․Section 64 of the Sentencing Act provides the following:
64Application—pt 5.2
(1) This part applies to the following:
(a)a sentence of imprisonment imposed by a court on an offender for an offence, other than an excluded sentence of imprisonment;
(b)full‑time detention ordered under the Crimes (Sentence Administration) Act 2005, section 65(2)(b).
Note Under the Crimes (Sentence Administration) Act 2005, s 65 (2), an offender’s intensive correction order may be cancelled, and a court may order any remaining sentence of the offender to be served by full-time detention.
(2) In this section:
excluded sentence of imprisonment means—
(a) a sentence of imprisonment that is fully suspended; or
(b)a sentence of imprisonment suspended under the custodial part of a drug and alcohol treatment order; or
(c)a sentence of imprisonment to be served by intensive correction; or
(d)a sentence of imprisonment imposed in default of payment of a fine; or
(e)a sentence of imprisonment imposed for an offence committed while in lawful custody; or
(f)(f) a sentence of life imprisonment; or
(g)(g) a sentence of imprisonment imposed on a young offender.
fine—see the Crimes (Sentence Administration) Act 2005, section 116A.
(emphasis added)
90․Counsel for the offender embarked, in written and oral submissions, on an exercise of statutory construction intended to address the “manifest unfairness” submitted to result from this provision of the legislation. Counsel for the offender referred the Court to my decision in Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 (Biddle), approved by the Court of Appeal in R v Gordon [2022] ACTCA 48 (Gordon). The Court in Gordon commented at [9]:
Recognising the significance of the issue, counsel for the offender referred to the operation of s 64 of the CS Act as explained in the decision of the court in Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 which had been decided just over a month previously. That was the case in which the long-overlooked consequences of s 64(2)(e) were recognised. Those were that a sentence of imprisonment imposed for an offence committed while in lawful custody was an “excluded sentence of imprisonment” with the consequence that Pt 5.2 of the CS Act, which provides for the setting of non‑parole periods, did not apply to it.
91․I set out the principles of statutory interpretation that apply in the ACT in Biddle at [17] as follows:
The principles of statutory interpretation that apply in the Australian Capital Territory (ACT), are summarised in KN v The Queen [2019] ACTCA 37 at [23] (see also: Will v The Queen (No 2) [2021] ACTCA 14 at [116] to [125]):
This dilemma must be resolved having regard to the following principles that are applicable to statutory interpretation in this jurisdiction.
(a)Common law presumptions operate in conjunction with the statutory provisions in Chapter 14 of the Legislation Act 2001 (ACT) (Legislation Act): ss 137(3) and (4) Legislation Act.
(b)In working out the meaning of an Act (including resolving ambiguity, confirming or displacing apparent meaning, or finding meaning where the apparent meaning results in absurdity or unreasonableness), the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: ss 138 and 139 Legislation Act.
(c)Non-legislative material may be considered, but in deciding whether it should be considered and the weight that should be given to it, account must be taken of the desirability of being able to rely on the ordinary meaning of the provision in question, having regard to its purpose and read in the context of the Act as a whole: ss 141(1) and (2)(a) Legislation Act.
(d)Non-legislative material that may be considered includes any relevant report of a Royal Commission and any explanatory statement relating to the bill as well as the presentation speech made to the Legislative Assembly during the passage of the bill: s 142 and Table 142 Legislation Act.
92․I also outlined the legislative history relevant to s 64 of the Sentencing Act in Biddle from [18]-[21]. I concluded in Biddle at [24] that “the legislature has imposed clear limitations on sentencing powers in dealing with offending that has occurred in custody”, and at [26]:
…the only conclusion available is that the legislative intent is for non-parole periods to not be an available sentencing order for offending of the type engaged in by the appellant. As a matter of statutory construction this appears to be the clear legislative intent.
93․Counsel for the offender submitted that the “intent of these provisions was to impact upon people who were serving a sentence of imprisonment”. Counsel for the offender submitted that the concept of “lawful custody” is a “very broad one, otherwise not defined, which extends to all sorts of offences that were probably not in the contemplation of the legislature when they enacted the provision”. Parties agreed that the term “lawful custody” was not otherwise defined in the Sentencing Act. Counsel for the offender submitted that “lawful custody” was limited to serving a sentence of imprisonment. In my view, this cannot be so as a matter of statutory construction.
94․The Explanatory Statement addresses the purpose of s 64 of the Sentencing Act as follows:
Clause 64 establishes the scope of sentences that can have non-parole periods set. A sentence of imprisonment can have a non-parole period set, unless it is an excluded sentence in clause 64(3). The excluded sentences are: life imprisonment; imprisonment served by way of periodic detention; imprisonment for offences committed in custody (usually in prison); imprisonment for not paying a fine; and a suspended sentence. (A suspended sentence is a sentence that is not executed: see clause 12 above).
(emphasis added)
95․In my view, it is clear that the legislature did not intend to limit the provision to serving a sentence of imprisonment. The legislation unequivocally states, “lawful custody”. That must include imprisonment on remand. In this case, the situation of being on remand, as the offender was, is “lawful custody” for the purposes of s 64.
96․I further note in relation to sentencing that it is important that, where there is legislation, the Court is not seen to attempt to circumvent the legislation, as stated in R v Jamal [2008] NSWCCA 177; 72 NSWLR 258 at [23]:
…The Court should not circumvent this legislative choice, particularly as that choice reflects the long established separation of powers with respect to the institution of criminal proceedings.
97․See also R v Butters [2019] ACTSC 143 at [95]; R v Kamara [2016] ACTSC 294 at [42].
98․The prosecution submitted that there is a possibility that the application of s 64 of the Sentencing Act may result in “unfair” outcomes. While, as I stated earlier, the Court cannot attempt to circumvent the legislation, the Court must, at the same time, nevertheless ensure justice is done in this individual case within the confines of the legislation.
99․In the absence of legislative reform, and as the legislation stands, under s 64, if the Court imposes a sentence of imprisonment, the sentence must not include a nonparole period. Therefore, I will not impose a nonparole period in this case.
Section 72 of the Sentencing Act
100․Section 72 of the Sentencing Act is also a relevant consideration in this sentencing exercise. Section 72 provides the following:
72Concurrent and consecutive sentences—offences while in custody or unlawfully absent
(1) This section applies if the primary sentence is imposed on the offender for any of the following offences:
(a) an offence committed while the offender was in lawful custody;
(b)an offence committed while the offender was unlawfully absent from a correctional centre or other place during the term of the offender’s sentence of imprisonment;
(c)an offence involving an escape from lawful custody.
Example of unlawful absence for par (b)
the offender fails to return to a correctional centre as required after community service work or approved leave
(2) In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3) The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(4) Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.
101․In the case of TM v Karapanos and Bakes [2011] ACTSC 74; 250 FLR 366 (TM), Refshauge J expressed the view that s 72(2) of the Sentencing Act does not express a legislative preference for accumulation of sentences. His Honour went on to say that the section is not a legislative direction to make sentences for offences committed whilst in custody primarily consecutive. The approach to sentencing in these circumstances, his Honour said, may be “differently influenced but the discretion is still wide”: see TM at [98].
102․When considering whether to make a direction under s 72(3) of the Sentencing Act, it is important to note the operation of s 118 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act). That section states:
118 Meaning of parole eligibility date
(1) For this Act, an offender’s parole eligibility date is—
(a) the date the offender’s nonparole period ends; or
(b)if the offender is subject to more than 1 sentence for which a nonparole period has been set—the day the last of the nonparole periods ends.
Note Nonparole period is defined in the dict.
(2) However, if the offender is also serving a sentence of imprisonment for which a nonparole period has not been set (the excluded sentence) and the nonparole period for the other sentence has ended, the offender’s parole eligibility date is the day the excluded sentence ends.
103․As stated earlier, the sentence for which the offender is currently serving has a nonparole period which expired on 23 August 2023. The prosecution submitted that the imposition of a period of full-time imprisonment with respect to this matter will have the practical effect, under s 118(2) of the Sentence Administration Act, of making the offender ineligible for release into the community until the sentence for this matter has expired. The prosecution submitted that the Court would be mindful of the practical ramifications of imposing a sentence of that length in the current circumstances which would weigh heavily in the Court’s consideration as to whether to make a direction under s 72(3).
104․In my view, a direction under s 72(3) is appropriate in this case. Namely, a direction that the term of imprisonment to be imposed would be served concurrently with the existing head sentence. As submitted by the prosecution, this is to ensure that the sentence is not crushing on the facts of this case and encourages continuing rehabilitation on the part of the offender. I agree with this submission as it coincides with my view of the facts in this case.
Further statutory considerations
105․In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
106․The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and rehabilitation are important sentencing considerations.
107․Careful attention must be paid to the maximum penalty, which provides a “yardstick”: Markarian v The Queen [2005] HCA 25; 228 CLR 357. I note the seriousness of this offence, emphasising that perverting the course of justice offences “strike at the heart of the justice system”.
108․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Parties properly agreed that given the objective seriousness and the nature of the offending, nothing but a sentence of full-time imprisonment was warranted in this case. As noted above, a nonparole period cannot be imposed per s 64 of the Sentencing Act.
Sentence
109․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters of the offender. In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, Mason CJ, Brennan, Dawson and Toohey JJ emphasised that the guideposts that are the purposes of sentencing sometimes “point in different directions”:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of 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.
110․As I stated in R v Bandy [2018] ACTSC 261 at [109]:
It is well to underline at this juncture that where two highly relevant considerations are incompatible, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: see for example R v Hopkins [2004] NSWCCA 105.
111․Further, and as Mahoney ACJ observed in Kable v The Director of Public Prosecutions (1995) 36 NSWLR 374, “a sentencing process must be capable of distinguishing between cases” and “if justice is not individual, it is nothing”.
112․The appropriate sentence for the offence of attempt to pervert the course of justice contrary to s 713(1) of the Criminal Code is eight months of imprisonment, reduced to 6 months and 12 days on account of the plea of guilty. The offence will be backdated to commence on 23 April 2023 to account for the time already spent in custody.
113․As a matter of totality, taking into account that the offender on the evidence is at an important crossroads in his life, and, as a matter of individualised justice in this case, a shorter than usual sentence is called for.
114․In accordance with s 72(3) of the Sentencing Act, I order that the sentence may be served concurrently with the head sentence that is currently being served. The offender was eligible for parole on 23 August 2023 and his next parole hearing is 16 November 2023. To achieve individualised justice in this case, as discussed above, it is appropriate to order concurrency. I note that the prosecution has submitted I would not be falling into error to do so on the unique facts of this case.
115․It is recommended on a grant of parole to the offender that there be:
(a)a referral to and engagement with a drug rehabilitation program; and
(b)a referral to and engagement with trauma informed counselling.
Orders
116․For those reasons, I make the following order:
(1)On the charge of attempt to pervert the course of justice contrary to s 713(1) of the Criminal Code 2002 (ACT), by virtue of ss 44 and 46 of the Criminal Code 2002 (ACT) (CC2023/1127), Mr Benjamin Wickes is convicted and sentenced to 6 months and 12 days’ imprisonment to commence 23 April 2023 and expire 3 November 2023.
Addendum
117․Prior to my decision in Biddle, the imposition of a nonparole period was a sentencing option that had been undertaken by judges of this Court where offending had occurred in “lawful custody”: see Biddle at [27]. That course was contrary to s 64(2)(e) of the Sentencing Act. Section 64(2)(e) had been overlooked.
118․Section 64(2)(e) clearly requires legislative attention as to whether greater flexibility in sentencing is appropriate in this context: see, for example, LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016; 81 NSWLR 552.
119․It will be a matter for the legislature whether any steps are taken to reflect a different legislative intent in respect of the availability of parole for offending occurring in custody. Constraining sentencing discretion in this regard may lead to unforeseen and unfair consequences in sentencing people in this jurisdiction. Some residual discretion may be desirable.
120․I recommend that a copy of this judgment be provided to the Attorney General of the Australian Capital Territory for the purpose of consideration being given to amendment of s 64 of the Sentencing Act.
| I certify that the preceding one hundred and twenty [120] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: L Parmenter Date: 18 October 2023 |
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