Director of Public Prosecutions v Wijeratne
[2020] VCC 73
•24 January 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01534
Indictment No. K11585288
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NALAKA WIJERATNE |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2019 | |
DATE OF SENTENCE: | 24 January 2020 | |
CASE MAY BE CITED AS: | DPP v Wijeratne | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 73 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Attempting to pervert the course of justice – Commit indictable offence whilst on bail – Contravene a conduct condition of bail – Early pleas of guilty – Contacted prosecution witness – Made a financial inducement to the complainant – Financial inducement made through a third party on 5 occasions over 52 days – Good prospects of rehabilitation – 1 year’s imprisonment – 9 months of the imprisonment be served cumulatively on the sentence currently serving
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Sprague Ms G Craven | Ms A Hogan, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr M Brennan Mr J Mitchell | Turnbull Lawyers |
HIS HONOUR:
1 Nalaka Wijeratne, you have pleaded guilty to an indictment containing one charge of attempting to pervert the course of justice (Charge 1 on Indictment K11585288). You have also consented to have this Court deal with two transferred related summary offences[1] of commit indictable offence whilst on bail (Charge 2) and contravene a conduct condition of bail (Charge 3). You have pleaded guilty to both these charges.
[1] Pursuant to Criminal procedure Act 2009 ss 145 & 242.
2 The maximum penalty for attempting to pervert the course of justice is 25 years’ imprisonment.[2] The maximum penalty for commit indictable offence whilst on bail is 3 months’ imprisonment or 30 penalty units.[3] The maximum penalty for contravene a conduct condition of bail is 3 months’ imprisonment or 30 penalty units.[4]
[2] Pursuant to Crimes Act 1958 s 320.
[3] Pursuant to Bail Act 1977 s 30B.
[4] Pursuant to Bail Act 1977 s 30A(1).
3 The prosecution filed a prosecution opening on plea dated 6 November 2019,[5] which I have been told by your counsel I can treat as a statement of agreed facts.
[5] Exhibit P1.
The facts
4 On 31 May 2017 you were charged by Victoria Police with offences including kidnapping, false imprisonment, making a threat to kill and obtaining a financial advantage by deception (‘the kidnapping offences’).
5 You were served with a copy of the prosecution brief for the kidnapping offences which included a witness list naming Mr Dineth Prasanga as a witness and a witness statement made my Mr Prasanga. Prior to you being charged in relation to the kidnapping offences on 31 May 2017 you and Mr Prasanga had some communication.
6 Mr Prasanga was therefore known to you as a prosecution witness and was known by you to be a friend of the victim of the kidnapping, Mr Ganehiarachchi.
7 On 21 December 2017 you were granted bail on the kidnapping offences by the Supreme Court of Victoria at Melbourne. A condition of the bail was that you were not to contact any witnesses for the prosecution, except for the informant or his nominee.
8 The same prohibition on contacting prosecution witnesses was a condition of the undertakings of bail signed by you in the Magistrates’ Court on 23 January 2018 upon committal, and in the County Court on 31 May 2018.
9 On five occasions in October, November and December 2018, you called Mr Prasanga from two mobile telephone numbers. The conversations between you and Mr Prasanga were spoken in your native language, Sinhalese, and the calls were recorded by Mr Prasanga.
10 During the calls you asked Mr Prasanga to contact Mr Ganehiarachchi and tell him you would return the $20,000, but that Mr Ganehiarachchi would have to go back to the police and withdraw his complaint against you.
11 Excerpts of the five telephone conversations are as follows:
20 October 2018 You said: “Yes I admit I made a mistake. I actually wanted to pay but I couldn’t as I lost his phone number. He was thinking I was trying to avoid that, and he went to the police. Will say that it is fair enough. Now I can pay his $20,000, but with one condition. He needs to go to the police station and drop all the charges.”
You further said: “It’s a money matter… if he says that he does not want to go to the trial, it causes mental stress to me, I do not even remember what exactly happened and he wants to drop the charges, they will straight drop the charges.”
20 October 2018 Prasanga stated at the start of the call that he is a prosecution witness in the case, and you acknowledged that you know.
You again said “If Muditha says he does not want to go to trial…I do not want to go to the trial…and drop my charges, the charges will straight get dropped”.
You stated that you could deposit the $20,000 into a third party account. Prasanga said he could not be a party to an illegal act, and said it would need to be done through a lawyer to ensure it is a lawful deal.
22 October 2018 Prasanga told you he had spoken to Muditha, and said “Muditha said…what you want is to get a letter asking to withdraw charges, is that right?” to which you replied “No, no if he confirms that verbally, that is enough”. Prasanga referred to the difficulty of Muditha saying that he lied, and you stated “No need to lie. Those things are true. But say he does not want to go to the trial. He can say he suffered…I got my money back, so I just want to drop the charges”
2 November 2018 You spoke to Prasanga about the money almost being ready, and transferring it once Muditha is released on bail. 10 December 2018 You told Prasanga “Money is ready now” and referred again to the charges being withdrawn. You discussed using the lawyers who were already representing Ganehiarachchi, or retaining Sri Lankan lawyers.
12 Mr Prasanga reported the phone conversations to police and he subsequently provided the audio recordings. Further investigation was undertaken to link the mobile phone numbers and the voice on the recordings to you.
13 On 22 May 2019 you were interviewed by police in relation to this matter. You admitted making phone calls to Mr Prasanga, but made no further comment in relation to the allegations.
14 You were then charged on summons to appear at Melbourne Magistrates’ Court at a later date.
15 You pleaded guilty at the earliest opportunity at the first committal mention.
Offence seriousness
16Attempt to pervert the course of justice is a very serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar.[6] The maximum penalty ‘shows unambiguously how seriously the community, through the Parliament, views this conduct’.[7]
[6] See Smith v The Queen (2014) 245 A Crim R 331, 346 [84], 350 [109] (Whelan JA, Neave JA agreeing).
[7] Nguyen v The Queen (2010) 208 A Crim R 464, 468 [18] (Maxwell P and Buchanan JA agreeing).
17In my view your offence is a serious example of the offence. This was conceded by your counsel. You attempted to dissuade the complainant in a serious criminal matter from pursuing his complaint against you. You made a financial inducement to the complainant. The financial inducement was made by you through a third party on five occasions during a period of 52 days and your offences are aggravated by the fact they were committed whilst you were on bail for the kidnapping offences and in breach of the express conditions of that bail. It is clear yours was a continuing offence, which was premeditated.
18I accept that the offending did not involve any direct contact with the complainant and did not involve any threats of violence. However, the offending was not spontaneous. The offending occurred over an extended period. There was ample opportunity for you to resile from this illegal course of conduct and desist.
19I am alert to the need to not doubly punish you by aggravating the sentence I impose on Charge 1, while separately punishing you for committing the related summary charges.[8] While some additional punishment is warranted on the related summary charges to reflect the added criminal involved in you committing those offences,[9] I will significantly moderate the sentences I impose on those latter charges to allow for the overlapping elements.
[8] Nguyen v The Queen[2012] VSCA 297, [41].
[9] See by analogy Robinson v The Queen[2017] VSCA 304, [27]-[35].
Personal circumstances
20 You are presently aged 45 years and were 43 at the time of committing these offences. You were born in Colombo in Sri Lanka. You are well-educated and were raised in an entirely functional, middleclass family environment. You completed your secondary schooling in Colombo.
21 Your mother is alive and living in Colombo. However, your father died in 2016. You have an elder brother who lives in Australia and a younger brother who lives in Sri Lanka.
22 In 1994, when you were 19 years old, you and your brother came to Australia on student visas. You studied information technology and then business management at Deakin University and graduated in 1999. However, whilst working at Coles during this period, you stole money from the till and you were charged with theft. Nine charges of theft were dealt with on 26 October 1995 at the Prahran Magistrates’ Court where you were, without conviction, released on a community based order for six months to perform 65 hours of unpaid community work.
23 Unfortunately, you developed a gambling addiction, and this has been a source of problems for you over many years. Your gambling issues became so problematic and entrenched that in 2000 you decided to leave Australia. After living in Singapore for two years, you returned to live in Sri Lanka from 2002 until 2012. You established a successful garment manufacturing business there. You were married in 2010.
24 In 2012 you returned to Australia and lived in Adelaide. You married and operated a successful used car sales business which traded until 2016.
25 During this period you lived an entirely responsible life. You were hardworking and contributed to an increasing list of charitable organisations, including the Red Cross, Amnesty International, The Stroke Foundation and Child Fund Australia. You sponsored two children living in Africa. This shows that you, at that time, had a social conscience.
26 In 2016 your wife left you and, as your counsel on the previous plea hearing in relation to the kidnapping offences described, your world ‘gradually fell apart’. I note that you have no children.
27 You recommenced gambling and, as a result, you lost your car sales business. A property that you owned in Sri Lanka, which was apparently valued at $1 million, was sold and the proceeds were also lost in gambling. Your losses mounted up and you were excluded from casinos in Adelaide and Melbourne. Your counsel on the previous plea hearing told me that in one year you lost about $2 million.
28 You then started using drugs, mostly methylamphetamine, and over the ensuing 18 months you frittered away a fortune.
29 You ultimately returned to Melbourne in January 2017 and worked as an unregistered loan broker.
30 You have a concerning prior criminal history. Apart from the theft charges dealt with in October 1995, you were dealt with for further theft matters in October 1996, when you were convicted and fined $1,000. In March 1997 you were convicted of two charges of obtaining property by deception and three charges of being an excluded person remaining in a casino, and you were convicted and released on a community based order to perform 100 hours of unpaid community work over six months and to receive counselling in respect of your gambling.
31 In July 1997 you were again dealt with for attempting to obtain property by deception and convicted and fined $150. You have other prior convictions for wilfully damaging property, possessing counterfeit money and a large number of traffic offences.
32 There is a gap in your prior criminal history between July 2000 and July 2016, which is explained by your absence from Australia. From 2016 you have further driving offences, breaches of the Bail Act1977, which is particularly relevant in relation to the related summary offences, and a charge of possessing equipment to use with a controlled drug.
33 I accept that you have no subsequent offences and no matters are outstanding or pending.
Mitigating circumstances
34 I accept that you are entitled to a discount on your sentence on account of your pleas of guilty to these charges. Your pleas were entered at the earliest opportunity at the first committal mention. You will obtain the utilitarian benefit of your pleas and I accept they demonstrate an acceptance of responsibility by you and a willingness to facilitate the administration of justice. However, I am unable to find that your pleas are evidence of true contrition and remorse over and above what is evident from the pleas themselves.
35 I accept that in the past you have led a productive life. That you are well-educated and have had gainful employment over many years. That you have contributed to society by making donations to various charities. However, it appears that your gambling and drug use has led you into antisocial behaviour and ultimately into the commission of the very serious offence in Charge 1.
36 So far as your visa status is concerned, you are not an Australian citizen and your visa to remain in Australia has expired. However, at the time of committing these offences you had a valid and lawful visa to remain in Australia.
37 I am satisfied that you will be deported to Sri Lanka upon your release from custody and that this is a mitigating factor in your case. The authorities make it clear that this can have relevance in two ways. Firstly, it may mean you will serve your sentence more onerously by knowing that at the end of it you will be deported to Sri Lanka. However, in your case, your marriage has effectively ended and your family are living in Sri Lanka. You want to return there to be re-united with them at the end of serving your sentence. In fact, you have completed and submitted a Request for Removal from Australia with Australian Border Force. Accordingly, this is not a mitigating circumstance in your case.[10] I note your counsel did not rely on this aspect of deportation during the plea hearing in relation to the kidnapping offences.
[10] Magedi v The Queen [2019] VSCA 102 [47] (Maxwell P and Weinberg JA) (‘Magedi’).
38 The second way the risk of deportation can be relevant is that you have, by reason of committing the kidnapping offences, and possibly the present offences, lost the opportunity you had to settle in Australia and make a life for yourself here. I accept in your case this has led to a ‘sense of real loss of the prospect of settling’ here. The authorities accept this is a form of extra-curial punishment, which I take into account in your favour in sentencing you for these offences.[11]
[11] Magedi [47], [55]–60]; Nguyen v The Queen [2016] VSCA 198 [35]; Allouch v The Queen [2018] VSCA 244 [39] (Beach and Weinberg JJA); Loftus v The Queen [2019] VSCA 24 [65], [79] (Whelan and Niall JJA).
39 You are currently serving a term of imprisonment at Marngoneet Correctional Centre (Karreenga), which I imposed on you for the kidnapping offences on 30 September 2019, of 8 years and 3 months with a minimum non-parole period of 6 years. You are a protection prisoner through no fault of yours,[12] and I take the added burden of custody that implies into account in your favour. Owing to your migration status, you are unable to re-locate to any other facility. Currently your earliest release date is 7 September 2024 and your sentence end date is 7 December 2026.
[12] See Comprehensive Prison History (Exhibit D2).
40 You are not in any form of lockdown. Presently, you are working 2 hours per day for 7 days of the week as a food billet. You are engaging in an English course for 4 hours per week and you hope to undertake a two-year diploma course. You have successfully completed a responsible service of alcohol program.[13] You are on the waiting list for a gambling course and an information technology course. You attend the prison gym three times per week and you play soccer and AFL football.
[13] See Exhibit D3.
41 While your mental health appears to have improved whilst you have been in prison, you have had some medical problems relating to your knees.[14] It was not suggested this adds to the burden of imprisonment on you in any way.
[14] See Exhibit D4.
42 I have had regard to the contents of a letter written by your elder brother, Jason Wijeratne, dated 12 December 2019.[15] He was present in court during some of the kidnapping trial supporting you. He has visited you several times while you have been in prison. He effectively expresses the opinion that you have learnt you lesson and you are unlikely to reoffend.
[15] Exhibit D5.
Application of sentencing principles
43 I have had regard to current sentencing practice in relation to the offence of attempting to pervert the course of justice in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[16] I have had specific regard to the case of R v Stevens,[17] which was provided to me by your counsel. Stevens involved a somewhat factually similar scenario to the present case, albeit I accept that his was objectively more serious offending than was yours. However, I also note that the Court of Appeal[18] described some of the sentences imposed by the sentencing judge in Stevens as ‘quite, if not unduly, lenient in the circumstances’.[19]
[16] DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 428.
[17] [2009] VSCA 81.
[18] Maxwell P, Vincent JA and Hargrave AJA.
[19] [2009] VSCA 81 [29].
44 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute the offence in Charge 1 and the myriad of personal circumstances pertaining to individual offenders.[20] Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case. As I earlier observed, I consider this to be a serious example of the offence.
[20] See eg Tognolini v The Queen (2011) 32 VR 104
45 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances
46 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society; albeit, most probably not the Australian society.
47 As your counsel recognised, general deterrence and denunciation are very important sentencing considerations in this case, particularly for the offence charged in Charge 1. Attempting to pervert the course of justice by importuning a victim of serious crimes, albeit through an intermediary, to withdraw the victim’s statement so you can avoid the consequences of having committed very serious criminal offences ‘imperils the proper administration of the criminal law’.[21]
[21] See R v Johns [2010] VSCA 63 [19] (Buchanan JA, Maxwell P and Harper JA agreeing).
48 Your concomitant breaches of the Bail Act 1977 were flagrant violations of legislation, which is partly intended to prevent the very conduct you committed from occurring.
49 Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis in your case, I am of the view that specific deterrence and protection of the community need be given very little, if any, weight. Moreover, I accept your counsel’s submission that, on balance, you have good prospects of rehabilitation, if you can remain drug free upon your release from custody.
50 As your counsel rightly accepted, the only appropriate sentence on Charge 1 that will give appropriate weight to the purposes for which that sentence is imposed is a sentence of imprisonment.[22]
[22] Sentencing Act 1991 s5(4).
51 Because your offence in Charge 1 was committed whilst you were on bail, the presumption of concurrency is rebutted in your case.[23] Nonetheless, I must give effect to the totality principle and there is obviously some overlap between the present offences and those for which you are presently undergoing sentence. I also must avoid imposing a crushing sentence on you.
Stand up Mr Wijeratne.
[23] Sentencing Act 1991 s 16(3C).
52 On Charge 1 on Indictment no. K11585288 of attempting to pervert the course of justice you are convicted and sentenced to imprisonment for 1 year. On the summary charges of commit indictable offence whilst on bail (Charge 2) and contravene a conduct condition of bail (Charge 3) you are convicted and discharged. I order that nine months of the sentence of imprisonment I have just imposed on Charge 1 be served cumulatively on the sentence you are currently serving.
53 Pursuant to section 14 of the Sentencing Act1991 I must fix a new single non-parole period. It is critical that I make it clear when that period commences.
54 There are two ways this can be done. I can either backdate the new single non-parole period I declare today to the date of the sentences I imposed on you on 30 September 2019, or I can direct that it commence from today. I am cognizant of the views expressed by Brooking JA in R v Rich (No 2)[24] that ‘there should be uniformity of practice’ and that ‘all new single non-parole periods should be made to commence on the date on which they are fixed’.[25]
[24] (2002) 4 VR 155.
[25] Ibid 166–7 [106] (Brooking JA, Winneke P and Charles JA agreeing at [9]).
55 I am aware that a number of judges of this Court have adopted the latter approach in the past and this has caused problems in the manner in which the sentence calculation authorities in Corrections Victoria interpret the order. What is critical is that there is certainty as to when the new single non-parole period I am fixing today commences and I will provide that certainty in these reasons.
56 I fix a new single non-parole period of 6 years and 6 months commencing on 30 September 2019, the day upon which I sentenced you for the kidnapping offences. My intention in setting this new single non-parole period is to add six months to your current earliest parole eligibility date. If my orders do not have this effect, I reserve liberty to apply to the parties to mention this matter so that any need to clarify or amend my orders can be dealt with.
57 There is no pre-sentence detention to declare in this case. However, the previous declaration I made on 30 September 2019 of 387 days’ PSD (at that time) remains unaffected by these orders and you will retain the benefit of that declaration.
58 Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you on the indictment charge but for your plea of guilty would have been a sentence of 18 months’ imprisonment. I would have cumulated 12 months of that sentence and effectively added 9 months to your earliest parole eligibility date. On the related summary charges I would have sentenced you on each charge to 7 days’ imprisonment wholly concurrent with indictment Charge 1 and with each other.
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