Criminal law – Sentencing – Crown appeals – Attempting to pervert the course of justice – Threats to police officer for the purpose of improperly influencing a prosecution – Respondents an articled clerk and a former law clerk – Violent threats made by first respondent – Lesser threats made by second respondent – Relevance of maximum penalty – Other considerations – Appeals allowed and respondents re-sentenced.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mrs C.M. Quin
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent Aydin
For the Respondent Kirsch
Mr P.F. Tehan, Q.C. with Mr C.B. Boyce
Mr M.J. Croucher with Mr A. Halphen
MMR Legal
Jack Sher & Associates
CALLAWAY, J.A.:
Introduction
The respondent Aydin was born on 10th June 1974 and the respondent Kirsch on 16th January 1957. Aydin was an articled clerk in the employ of Yiannoulatos Lawyers and Kirsch had been employed by that firm as a law clerk until he was disqualified in 2000. Kirsch was nevertheless one of Aydin’s de facto supervisors. Aydin turned to him for guidance and advice and was influenced by him. The presentment alleged that at Melbourne on 4th July 2001, with intent to pervert the course of public justice, the respondents did a series of acts which had a tendency to pervert the course of public justice: they made threats to Detective Senior Constable Benjamin Archbold for the purpose of improperly influencing the prosecution of Houssam Zayat, in which Mr Archbold was the informant, by inducing him not to oppose the granting of bail to Zayat and to reduce the number of charges against him, contrary to Mr Archbold’s duty.
As explained in my judgment in R. v. Aydin[1], that form of words alleges the common law offence of attempting to pervert the course of justice. The respondents were found guilty of that offence at separate trials presided over by Judge Strong. Separate pleas were heard. No previous convictions or findings of guilt were alleged against Aydin, but he had subsequently been charged, together with Darrin James Flett, with conspiracy, earlier in 2001, to do acts tending and intended to pervert the course of public justice. At the time he was sentenced by Judge Strong, he had been found guilty of that offence at a trial presided over by Judge Douglas and was awaiting sentence. Kirsch had an extensive criminal history, to which I shall refer later.
On 2nd July 2004 Judge Strong sentenced Aydin to 12 months' imprisonment with a non-parole period of six months.[2] On the same day his Honour sentenced Kirsch to 15 months' imprisonment…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DPP v Aydin & Kirsch [2005] VSCA 86
Case
[2005] VSCA 86
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions versus Aydin and Kirsch, the High Court was called upon to address the sentencing of the two respondents following their conviction for attempting to pervert the course of justice. Aydin, an articled clerk, and Kirsch, a former law clerk, had made threats to a police officer with the intent to improperly influence a prosecution. The Crown appealed the sentences imposed on the respondents, contending that they were manifestly inadequate.
The central legal issues for the court to resolve included the appropriateness of the sentences handed down to the respondents and the relevance of the maximum penalty applicable to the offence of attempting to pervert the course of justice. The court was required to consider the circumstances of the threats made by each respondent, with Aydin's threats being of a more violent nature than those made by Kirsch. The court also needed to weigh various other factors pertinent to sentencing, such as the respondents' backgrounds, the nature and extent of their involvement in the offending conduct, and the need to maintain public confidence in the administration of justice.
The High Court found that the sentences originally imposed on the respondents were manifestly inadequate. In delivering the judgment, the court emphasised that the maximum penalty for the offence was a significant factor that needed to be considered in sentencing. The court also took into account the respondents' backgrounds, their respective roles in the offending conduct, and the importance of maintaining public confidence in the administration of justice. Consequently, the appeals were allowed, and the respondents were re-sentenced to reflect the court's assessment of the appropriate penalties. The new sentences imposed on Aydin and Kirsch were deemed to be commensurate with the seriousness of their offending and the principles of sentencing relevant to their case.