Edmonds v R

[2022] NSWCCA 103

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Edmonds v R [2022] NSWCCA 103

Hearing dates:

11 May 2022

Date of orders:

25 May 2022

Decision date:

25 May 2022

Before:

Macfarlan JA at [1]
Rothman J at [2]
Dhanji J at [3]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal allowed.

(3)   Quash the sentences imposed in the District Court on 6 November 2020 by his Honour Judge Colefax SC.

(4)   In lieu thereof, with respect to each count on the indictment, sentence the applicant to imprisonment for a non-parole period of 2 years commencing on 6 April 2020 and concluding on 5 April 2022 with a balance of term of 1 year which is due to expire on 5 April 2023.

(5)   I note that the applicant became eligible for parole on 5 April 2022.

Catchwords:

CRIME – appeals – appeal against sentence – two offences of doing an act intending to pervert the course of justice – forging letters for use in bail application – sentencing judge rejected applicant’s evidence in psychological report – no indication to applicant that issue was to be taken – denial of procedural fairness – error in assessment of objective seriousness – “typical” case not necessarily a mid-range case – cumulation not warranted – resentence

Legislation Cited:

Crimes Act 1900 (NSW), s 319

Crimes Act 1914 (Cth), s 43

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44(2)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Evidence Act 1995 (NSW), s 4

Migration Act 1958 (Cth), s 501(3A)

Cases Cited:

Amiri v R [2017] NSWCCA 157

BS v R [2021] NSWCCA 39

Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27

Farkas v R [2014] NSWCCA 141; 243 A Crim R 388

Gould v R; R v Gould [2021] NSWCCA 92

Greentree v R [2018] NSWCCA 227

Johnson v The Queen [2004] HCA 15; 78 ALJR 616

Ke v R [2021] NSWCCA 177

Kristensen v R [2018] NSWCCA 189

Lloyd v R [2022] NSWCCA 18

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413

R v Edmonds [2020] NSWDC 687

R v Millwood [2012] NSWCCA 2

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

R v XX [2009] NSWCCA 115; 195 A Crim R 38

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Weir v Regina [2011] NSWCCA 123

Category:

Principal judgment

Parties:

Kelly Edmonds (Applicant)
Regina (Respondent)

Representation:

Counsel:
C Wasley (Applicant)
A Morris (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/360389

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Edmonds [2020] NSWDC 687

Date of Decision:

6 November 2020

Before:

Colefax SC DCJ

File Number(s):

2019/360389

Judgment

1. MACFARLAN JA:   I agree with Dhanji J.

2. ROTHMAN J: I have had the opportunity to read in draft the judgment of Dhanji J.  I agree with the reasons his Honour expresses as to the sentencing judgment below.  I also agree with the proposed sentence in substitution for the sentence below and the reasons for that sentence.

3. DHANJI J: The applicant, Kelly Edmonds, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on her by Colefax SC DCJ in the District Court at Campbelltown on 6 November 2020.

4. The applicant was committed for sentence from the Local Court at Campbelltown on 8 July 2020 after pleading guilty to two offences. Each was an offence of doing an act, intending to pervert the course of justice, pursuant to s 319 of the Crimes Act 1900 (NSW) carrying a maximum penalty of 14 years imprisonment.

5. The applicant was sentenced to an aggregate term of imprisonment of 4 years and 6 months commencing on 6 April 2020 and expiring on 5 October 2024, with a non-parole period of 3 years and 4 months. The applicant is eligible for release to parole on 5 August 2023.

6. The indicative sentences for both offences were 3 years and 9 months, following the application of a 25% discount for the plea of guilty. Accordingly, the aggregate sentence reflects an accumulation of 9 months.

7. The applicant seeks leave to appeal on the following grounds:

“1.   The applicant was denied procedural fairness in respect of his Honour’s findings regarding her subjective case.

2.    His Honour erred in his assessment of the objective seriousness of the offences.

3.    The aggregate sentence imposed was manifestly excessive in the circumstances of the applicant’s case.”

8. The Crown conceded that it would be open to this Court to find that ground 1 is established. Despite the concession, it remains for this Court to be satisfied that ground 1 is established.

Factual background

9. The following summary is derived from the amended statement of agreed facts tendered at the proceedings on sentence.

“Letters

3.   On 10 October 2017 the legal representatives for Hayley Karaitiana appeared in the New South Wales Supreme Court in a bail application for the firearms offences. The co-accused appeared by audio-visual link.

4.   The defence bundle was tendered and marked 'Exhibit 2'. The bundle included letters from medical practitioners. It was admitted without objection.

5.   Two letters purported to have been signed by Doctor Anna Sellbach of St Andrew's War Memorial Hospital in Queensland were part of the defence tendered document bundle.

6.   The letter dated 15 August 2017 stated that:

“I first reviewed Miss Karaitiana after receiving a referral from Dr Chowdhury AkramUZ Zaman.

Past History

2008 Cervical Cancer

2015 Lung Cancer (left)

2017 Diabetes

2017 CVA

Subsequent testing after Miss Karaitiana CVA revealed multiple metastatic lesions on the brain.

Miss Karaitiana requires specialist treatment and management for this terminal condition in order to sustain her quality of life.

Without such treatment Miss Karaitianas QOL would be very bleak."

7.   The letter dated 27 September 2017 stated:

"It would be extremely beneficial for Miss Karaitiana to commence radiation therapy and chemotherapy at her earliest convenience.

I have been informed of the difficulty this presents to Miss Karaitiana being currently incarcerated. It is imperative that this treatment be commenced as soon as practicable and for the patient to be reviewed in 3-6 months to assess her response to treatment in the hopes of her being suitable for surgery."

8.   Karaitiana was granted conditional bail on 10 October 2017. At the time of granting bail Justice Schmidt noted that there was no issue between the parties that cause had been shown, "on evidence tendered this morning, which establishes, by letters provided from various medical practitioners, that the applicant is suffering various cancers, including inoperable brain cancer which is terminal. She has some three to six months to live and requires treatment to alleviate her symptoms which are not available to her in custody”. Justice Schmidt noted "In the circumstances, I, too, am satisfied that cause has been shown".

9.   On 25 February 2019 a trial was listed to commence in the relation to the firearms offences for the co-accused Karaitiana.

10.   On 26 February 2019 the legal representative for the co-accused, Karaitiana, filed an affidavit raising the issue of fitness in the Campbelltown District Court to vacate the trial. Annexed to the affidavit were records and letters from medical practitioners. The trial was vacated.

11.   Two letters purported to have been signed by Doctor Anna Sellbach of St Andrew's War Memorial Hospital in Queensland were annexed to the Defence affidavit. The letters were dated 15 August 2017 and 27 September 2017 respectively. These letters were the same letters tendered in Karaitiana's Supreme Court bail application on 10 October 2017.

12.   On 14 October 2019 the legal representatives for Hayley Karaitiana filed a Notice of Motion and an Affidavit in Support that trial proceedings relating to Karaitiana be permanently stayed in the Campbelltown District Court.

13.   Two letters purported to have been signed by Doctor Anna Sellbach of St Andrew's War Memorial Hospital in Queensland were part of the Application for Permanent Stay of Proceedings. The letters, dated 15 August 2017 and 27 September 2017 respectively, had previously been included in the defence bundle tendered in the Supreme Court bail application and were annexed to the affidavit filed on 26 February 2019 in the Campbelltown District Court.

14.    It is agreed that the purpose of the creation and forwarding of the documents was to assist the co­offender Hayley Karaitiana in bail proceedings before the Supreme Court on 10 October 2017.

15.    The Crown accepts that it cannot prove that the offender contemplated the use of the documents in any trial proceedings. The Offender made admissions contemplating their use in sentence proceedings.

Police Investigation

16.   Inquiries by police established that Dr Anna SELLBACH no longer practiced at St Andrews War Memorial Hospital. Police contacted the offices where Dr Anna SELLBACH was now practicing.

17.   On 30 October 2019 Dr SELLBACH was provided with the two letters dated 15 August 2017 and 27 September 2017 respectively that purported to have been signed by her.

18.   Dr SELLBACH reviewed both letters provided to her by police and indicated the following:

a.   The signature at the bottom of both documents was not hers;

b.   Her provider number was not included in the letter;

c.   The content of the letter was not familiar to her;

d.   The letterhead is not from the practice she was working in at the time;

e.   The language, style text alignment and formatting of the letters is not in keeping with her correspondence from Neurosciences Qld or any correspondence she may have self-drafted from St Andrews War Memorial Hospital;

f.   The conditions for which the patient has been seen are not conditions which Dr SELLBACH typically manage (her practice is subspecialised in movement disorders - She does not accept referrals from GPs for stroke or brain cancer);

g.   She has never personally recommended radiation or chemotherapy for any patient she has cared for - were this to be needed for a patient under her care she would expect the radiation therapist or oncologist to make these recommendations.

19.    Dr SELLBACH confirmed that the letters were not written by her.

Arrest

20.    On 15 November 2019 the offender, Kelly Edmonds, voluntarily attended the Macquarie Fields Police Station where she participated in an electronically recorded interview.

21.   During the interview the offender was questioned about the two letters dated 15 August 2017 and 27 September 2017 respectively purported to have been signed by Dr Sellbach, the subject of the charges. The accused stated to police, "Well, I forged them. I did them."

22.   The offender made admissions that she had got the name of Dr Sellbach off Google and a letter head off the computer. She had signed the letters down the bottom.

23.   Once she had finished the letters the offender admitted that she had faxed the documents to Hayley Karaitiana's lawyers.

24.   When questioned as to the purpose for creating the letters, the offender said that it was to get a lesser sentence for her partner Hayley Karaitiana.

25.   The offender was arrested and charged.”

Proceedings on sentence

10. Proceedings on sentence were conducted on 6 October 2020. The Crown tendered a bundle containing the notice of committal, indictment, agreed facts, criminal history issued by the NSW Police Force and Australian Federal Police, custodial record and the sentencing assessment report, and separate to the bundle, a copy of the amended agreed facts. The defence tendered a report of Ms Kris North, forensic psychologist, dated 22 September 2020 (“the psychological report”).

11. The psychological report contained opinions that were substantially based on information the applicant provided to Ms North. This report outlines that the applicant was born and raised in New Zealand to Maori parents before migrating to Australia with her family in 1999. The applicant resided in a low socio-economic area when in New Zealand and her family was poor. She was both a witness to and victim of domestic violence perpetrated by her father, who had gang affiliations, and she reported being exposed to drug use and antisocial influences from a young age.

12. The applicant was in a same-sex relationship from her late teens to mid-twenties, which was characterised by alcohol-fuelled domestic violence. The applicant is currently in a long term same-sex relationship with the co-offender, with whom she has three children.

13. The applicant began using alcohol at the age of 19, which she habitually used during her past relationship. She also described smoking cannabis “on and off” since the age of 18. The applicant began using methamphetamines in early 2019 after being introduced to this drug by her partner. This drug use has led to a deterioration in her mental health and relationship issues. Ms North assessed the applicant as satisfying the criteria for adjustment disorder, which she developed after entering custody, and stimulant use disorder in respect of her amphetamine use prior to incarceration.

14. The applicant expressed remorse to Ms North for her offending, stating that she had committed the offences with the hope of keeping her partner out of gaol so that she could be with herself and their children. She reported that the incarceration of her and her partner has negatively impacted their three children, noting that they had been referred to the school counsellor for emotional support. She also expressed concern over her potential deportation to New Zealand after her release from gaol and the impact that would have on her family.

15. Ms North assessed the applicant as posing a medium risk of reoffending and recommended, amongst other things, that the applicant be referred to substance use treatment to assist her in maintaining long-term abstinence from drug use, to reduce her risk for recidivism.

Remarks on sentence

16. The remarks on sentence are contained in R v Edmonds [2020] NSWDC 687.

17. In relation to the objective seriousness of each offence, Colefax SC DCJ found (at [18]) that they fell “slightly above the mid-range offence, given the two uses to which each document was ultimately intended to be used – and, in the case of the bail application, was successfully used.” His Honour did not find any additional aggravating factors.

18. With respect to the applicant’s subjective case, his Honour noted that the applicant did not give evidence in the sentence proceedings, but rather advanced her subjective circumstances through the psychological report. After outlining her subjective circumstances as contained in the psychological report, his Honour found that the applicant posed a medium risk of reoffending, her criminal record disentitled her to leniency (although it was not an aggravating factor), and her prospects of rehabilitation were guarded.

19. Most importantly for the purposes of this application for leave to appeal, is his Honour’s finding at [36] that “in the absence of any independent and objective supporting evidence, [his Honour was] not persuaded on the balance of probabilities that [the applicant] had a dysfunctional upbringing, that [the applicant] had later in life traumatic experiences, that [the applicant has] an adjustment disorder, or that [the applicant is] remorseful for [her] offending.” In so finding, his Honour noted that the applicant did not give oral evidence to affirm the truth of the history contained in the report, or to express her remorse. His Honour also relied on the applicant’s prior criminal history of dishonesty, and more pertinently, the nature of the offences for sentence given they involved the active misleading of a court. This aspect of his Honour’s reasons is the subject of complaint articulated in the first ground of appeal.

20. Colefax SC DCJ was satisfied that the applicant was entitled to a 25% discount for the utilitarian value of her early plea but was not satisfied that the assistance she provided to authorities was sufficient to ground a further discount. His Honour also found that, although the two offences were discrete, they were part of an “ongoing course of conduct” and determined that “there will be meaningful partial concurrency”. (His Honour noted that in making this determination with regards to concurrency, he has not lost sight of the dual purposes for which the offences were committed.)

21. Colefax SC DCJ declined to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period and imposed the sentence set out above.

The grounds of appeal

Ground 1 – the applicant was denied procedural fairness in respect of his Honour’s findings regarding her subjective case

22. As noted above, the Crown conceded that this ground was made out. I am of the view that this concession was properly made. My reasons for accepting this submission are set out below.

The circumstances in which the complaint arises

23. While the ground is framed in terms of a denial of procedural fairness with respect to the applicant’s subjective case, the issue arises in the specific context of his Honour’s treatment of the psychological report tendered by the applicant. As noted above his Honour did not accept the history contained in that report. His Honour said (at [35]-[36]):

“35   In this context, I note that you have a long history of comparatively minor criminal offences – a number of which, in one way or another, involve offences of dishonesty, including in 2019 four offences of obtaining a financial advantage (offences which predate your interview with Ms North). More significantly, I also know the nature of the two offences for which you are to be sentenced. In my opinion, a person capable of carrying out those two serious offences – which were both thoroughly dishonest and involved a substantial and serious manipulation of the Court’s processes – would have little difficulty in presenting a history of disadvantage to an expert for the purposes of your own sentencing – especially where that offender was not prepared to enter the witness box to swear to the truth of the histories; and where that offender had prepared false documents for the specific purpose of interfering with another sentencing process.

36   Therefore, in the absence of any independent and objective supporting evidence, I am not persuaded on the balance of probabilities that you had a dysfunctional upbringing, that you had later in life traumatic experiences, that you have an adjustment disorder, or that you are remorseful for your offending.”

24. To understand this ground of appeal it is necessary to view the above finding in the context of what occurred in the proceedings on sentence. The applicant tendered the report (and it was admitted into evidence) without objection from the Crown. Subsequently, in the course of submissions, the following exchange occurred:

“TOWNSEND: Yes, thank you, your Honour. In terms of what my friend has said about - there’s nothing of a profound Bugmy nature about her deprivation, she watched her mother being beaten.

HIS HONOUR: Yes, you don’t need to address me on that, Mr Townsend. What I would say about Bugmy, the submission that Mr Crown made is one that’s commonly made by Crown representatives. What I, myself, don’t understand is why these reports are not objected to in circumstances where the Crown hasn’t sought an assurance from an offender that the offender will get into the witness box and assert the truth of them.

Once the Crown takes the course of not objecting to the document, and not requiring the deponent for cross-examination, it is a bit difficult, I think - I’ve thought this for some time - for Crowns to then say, “Absent there being something within the document itself which gives rise to a concern about reliability” - that’s 2 o’clock’s matter. So that’s the matter at 2 o’clock. That’s where within the context of the document itself there are reasons for concern.

But where the Crown doesn’t take an objection and doesn’t require the person to swear to the truth, it is difficult for the Crown, in my view, to make the submission that this Crown representative has made. And, indeed, well - no, the next thought I shall save for articulation on another day.

TOWNSEND: Yes. Well, may I just as an aside then say, I’ve always been troubled by Qutami and the line of cases, and what that has established in terms of - just in terms of - they seem to me contrary to the rules of evidence in the sense that - what your Honour’s just expressed, rules of evidence don’t apply in sentence proceedings. But then, on a particular aspect, they are held to apply.

HIS HONOUR: Well, remorse is something different. Qutami, that relates to remorse, and I well understand and, for what it’s worth, I do agree with the Court of Criminal Appeal, that if an offender wishes to say that she or he is remorseful, it is - I do understand why the High Court say that should be looked at with scepticism unless it’s sworn to on oath. It’s a different thing to give the Bugmy material, because remorse and expression of it on oath, the Crown has an opportunity to test that.

The Crown’s in a very difficult position in relation to Bugmy material. How is the Crown ever expected to test the truthfulness of it? Now, where the particular offender has a history of dishonesty, that raises issues. And, I mean, in any event, I’ve got no doubt that in most custodial settings, it’s well known amongst people waiting sentence that if they say they were sexually abused as a child they get - their sentence will be reduced. I’ve got no doubt that that is a topic of discussion in the remand centres of every gaol in this State.

TOWNSEND: May well be true, I don’t know.

HIS HONOUR: And no one ever - the Crown never tests this. It’s a very difficult position for the Court and the Crown to be in.

TOWNSEND: I think what I was thinking about - more about Qutami, the original case of Qutami talks about self-serving statements in referring to the objective gravity of the offence in these sorts of documents, but that principle seems to have been expanded to embrace anything said in these documents. But anyway, as your Honour says, perhaps that’s for another time.

HIS HONOUR: In this case we’ll - I think I’m not in a position to reject the version of events given by the offender.” (emphasis added)

The nature of sentence proceedings

25. No order was made in the present matter that the Evidence Act 1995 (NSW) should apply to the proceedings, or any part of them: see s 4 of the Evidence Act. The consequence of this, on current authority, is that the common law of evidence applied: R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413 at [61]; Farkas v R [2014] NSWCCA 141; 243 A Crim R 388 at [14] and [89]; BS v R [2021] NSWCCA 39 at [56]. However, that does not entail the strict application of those rules. In Bourchas, Giles JA (Levine and Sperling JJ agreeing) said at [61]:

“… In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no-one’s interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies.”

26. The efficient operation of the courts in sentencing offenders is heavily dependent on such an approach. While a sentencing judge is not bound by the conduct of the parties, he or she is presiding over adversarial proceedings. In an adversarial context, the parties will make decisions as to the material to be put before the Court, and will join issue with respect to matters of fact and law. Where no issue is joined between the parties, the avoidance of practical injustice (and thus procedural fairness) will generally require a party to be made aware if issue is to be taken by the sentencing judge. The principles were summarised by Garling J (with whom Macfarlan JA and Johnson J agreed) in Weir v Regina [2011] NSWCCA 123 as follows, at [64]-[67].

“64   It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.

65   The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose.

66   The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].

67   One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18].”

27. The observations of McCallum JA (with whom Hamill and Cavanagh JJ agreed) in Lloyd v R [2022] NSWCCA 18 at [47] are also apposite:

"Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise “very considerable caution” before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance."

28. Returning to the present matter, the sentencing judge plainly indicated to the applicant’s counsel that, despite the degree of dissatisfaction with the process, counsel did not need to address on what were described as “Bugmy matters”, the factual foundation for which was contained in the report. This, together with his Honour’s statement that “I think I’m not in a position to reject the version of events given by the offender” effectively foreclosed the applicant’s counsel from making submissions as to why the applicant’s account to the psychologist should be accepted or, alternatively, reconsidering his decision not to call the applicant. This amounted to a denial of procedural fairness. Accordingly, ground 1 is made out.

Ground 2 – assessment of the objective seriousness

29. While the offences were not standard non-parole period offences, the sentencing judge assessed both offences as being “slightly above the mid-range”. While it was not necessary to use the language of standard non-parole period offences, the determination of the objective gravity of the offending remained an integral part of the sentencing exercise: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20]; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472; Amiri v R [2017] NSWCCA 157 at [26]. It is well-established that the assessment of the objective gravity of an offence is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis: see Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]; and note Greentree v R [2018] NSWCCA 227 at [34]. Despite the necessary restraint inherent in the exercise, I have come to the view that it was not open to the sentencing judge to find the offences were above the mid-range of objective seriousness.

30. There is no doubting that these were serious offences. Documents were created for use in criminal proceedings with the intended effect of influencing decisions on bail and on sentence in relation to extremely serious offending. They were, in fact, instrumental in the applicant’s partner obtaining bail. The sentencing judge appears to have been significantly influenced by the continuation of the offences, in the sense of the intention that they be used in both bail proceedings and on sentence, distinguishing them from an offence isolated to a relatively confined act or period. The date range in the indictment spanned the period from 24 August to 10 October 2017. That latter date is the date on which the letters were used in the bail application. Nonetheless, it remains relevant that it was the applicant’s intention that both documents would be used at some unspecified time in the future for the purposes of her partner’s sentencing.

31. While the above matters make the offences of some seriousness, placing the seriousness of an offence in the scale of seriousness of such offences can only sensibly be done by considering the full range of offending covered by the provision. While human imagination is always capable of inventing a more serious offence, it, nonetheless, remains the case that the offence with which the applicant was charged encompasses offending that is significantly more grave. The applicant’s offence was not particularly sophisticated. The veracity of the letters was easily checked, with substantial risk to the applicant of detection. While the offences were clearly planned, and the applicant had substantial time over which she might have withdrawn, the period of the indictment was nonetheless relatively confined.

32. The applicant’s offending can be contrasted with offending in a case such as Gould v R; R v Gould [2021] NSWCCA 92. While the offender in that case was charged under a different provision, attempting to pervert the course of justice contrary to s 43 of the Crimes Act 1914 (Cth) (the course of justice being in the context of federal judicial proceedings), with a lower maximum penalty (10 years), that case provides an example of offending at a significantly greater scale. In that case the offender, over a period of about six months arranged for the attendance of, and coached a witness to give false evidence in tax proceedings in the Federal Court involving millions of dollars. I do not mean to suggest that the amount of money makes those proceedings more serious than the criminal proceedings involved here. What did make the offending more serious was, as described by Adamson J, the sustained, sophisticated, deliberate acts of the offender in circumstances where the evidence of the witness provided the foundation for the proceedings brought by the taxpayers.

33. While the present offence was arguably more serious than typical offences of perverting the course of justice, that does not take it above the mid-range. While this Court’s decision in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 was overturned by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 the admonition in that case at [101], that the “typical” or “common” case is not necessarily a case falling in the mid-range of seriousness remains valid. As with many, perhaps most, offences, offences of very great seriousness, falling in the upper end of the scale of objective seriousness, tend to occur less frequently. Comparing a particular offence to what is commonly seen has the potential to lead to a distortion in the perception of where an offence falls in the scale.

34. In the present case it is noteworthy, though by no means conclusive, that the Crown at first instance submitted the offences to be within the mid-range. Ultimately, and with some reticence, I am of the view that, having regard to the broad spectrum of potential offending against the section, it was not open to find the objective gravity of the offending in this case to be above the mid-range of objective seriousness. Ground 2 is made out.

Ground 3 – manifest excess

35. Having regard to the conclusions I have reached above in respect to grounds 1 and 2, and the necessity to resentence, it is unnecessary to determine this ground.

Resentence

Evidence relevant to resentence

36. For the purposes of resentence, the applicant relied on the affidavit of Ms Pip Hill, the applicant’s solicitor affirmed 19 April 2022, in addition to the psychological report of Ms North which was before the sentencing judge. Ms Hill deposes as to the following matters.

37. Ms Hill gives evidence of the impact that COVID-19 has had on the applicant’s experience of custody, which includes cancellations to bookings for legal conferences with the applicant due to staff shortages, the imposition of a three-week lockdown in the gaol to avoid the spread of COVID-19, the stress that COVID-19 has generally caused the applicant, and restrictions to contact visits. The applicant informed Ms Hill that her parents and her three children have only been able to visit in-person three or four times during her time in custody, although she does see her three children once a week by video call and speaks with them on the phone every second day.

38. The applicant’s case management file shows that the applicant has been engaging in the Intensive Drug and Alcohol Treatment Program for Women (“IDAPT”) since being sentenced. She has completed the Real Understanding of Self-Help program, which is the first component of the IDAPT. The applicant was involved in an incident in mid-January with another inmate (in which the other inmate was the alleged aggressor), which has led to her suspension from the IDAPT for 8 weeks. The program facilitator has indicated that this was out of character for the applicant.

39. The applicant also put before the Court evidence of the mandatory cancelation of her visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). The applicant was notified of this shortly after she was sentenced. She has responded in writing, seeking revocation of the cancellation but has not yet received a determination as to this matter. The applicant submitted this uncertainty was relevant to the applicant’s experience of custody (even if the fact of deportation itself is not a matter relevant to the determination of sentence, as to which see Kristensen v R [2018] NSWCCA 189; Ke v R [2021] NSWCCA 177).

Objective gravity

40. I have had regard to the nature and content of the letters written by the applicant, their use in the proceedings on 10 October 2017, their intended future use in sentence proceedings, the potential advantage to be obtained, and the gravity of the proceedings in which they were intended to be used. Having regard to those factors, I regard each offence as a serious example of offending against s 319 of the Crimes Act. Nonetheless, for the reasons given above, I would not put the offending above the mid-range category.

Matters in dispute between the parties

41. The applicant challenged a number of findings made by the sentencing judge. The respondent accepted that, having regard to the explicit challenge made, it was open for this Court to make its own findings at to these matters. The respondent did not, however, accept that the findings urged by the applicant should be made. It is necessary to deal with the matters in dispute.

The applicant’s background and its impact on her moral culpability

42. The respondent conceded that it was open to this Court to accept the applicant’s background as recounted in the psychological report. The respondent, however, submitted that the applicant’s background does not diminish her moral culpability.

43. As noted above, the applicant grew up in a socially impoverished household with an exposure to family violence from a young age. She had, as an adult, herself been involved in a relationship where she was the victim of domestic violence. She had also, at an earlier stage of her adult life, used alcohol to “block stuff out”. She had gone on to use amphetamines in the context of her current relationship leading to relationship issues and a deterioration in her mental health.

44. It can be accepted that the present crime required forethought and planning. In this way it can be distinguished from a spontaneous crime of violence committed by a person who grew up in an environment where a response to violence was the norm, such as was the case in Bugmy v The Queen (2013) 248 CLR 601; [2013] HCA 27. That does not mean, however, that the applicant’s background does not impact her moral culpability. In Lloyd v R, McCallum JA (at [28]) set out with approval the following passage taken from the reasons of Simpson J in R v Millwood [2012] NSWCCA 2 at [69]:

“I would reject the proposition [that there was little in the circumstances of the offender that assisted him by way of mitigation]. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been ‘tragic and dysfunctional’. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

45. In the present case, I am satisfied that the applicant’s background was such as to impact upon her decision making in the context of her desire to maintain her family unit. In other words, I am satisfied that the applicant’s background has at least some impact on her moral culpability.

Rehabilitation

46. The sentencing judge assessed the applicant’s prospects of rehabilitation as being “guarded”. I have had the advantage of evidence of the applicant’s progress subsequent to her sentencing. That evidence demonstrates positive progress on the applicant’s part. Additionally, I note that, while the applicant has convictions for offences in the nature of common assaults, stealing, property damage and driving offences, she has not previously committed any offence of this level of seriousness. I am of the view that her prospects of rehabilitation are good.

Remorse

47. At first instance the applicant relied upon her expression of remorse to the psychologist. The Crown below submitted that this hearsay report should not be accepted. The sentencing judge, perhaps understandably, given the offences he was dealing with, was not prepared to find that the applicant was remorseful. However, again I have the benefit of evidence of the applicant’s progress in custody. While that evidence is primarily relevant to the applicant’s rehabilitation it also speaks to the related issue of remorse. The applicant’s efforts to address her offending support a finding of remorse. Further, this subsequent conduct should also be seen in the light of the frank admissions to the offending when confronted by the authorities. This included her admission to an intention that the letters be used in sentence proceedings in the future which, absent such admission, it is doubtful the Crown could prove.

Other aspects of the applicant’s subjective case

48. In addition to the above matters, I have had regard to the evidence of the impact of the COVID-19 pandemic on the difficulty of the applicant’s custody. I also accept that the applicant’s experience of custody has been made more difficult as a result of her anxiety surrounding her potential deportation.

Sentence

49. I have had regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The present offence is one that strikes at the heart of the integrity of the administration of criminal justice. General deterrence must play an important role in the determination of the sentence, albeit that that weight should be somewhat reduced given my finding as to the applicant’s reduced moral culpability. Retribution and denunciation are important factors having regard to the nature of the crime, although I would again allow a slight moderation in their role in accordance with my view of the relevance of the applicant’s background. I do not, having regard to my findings as to the applicant’s remorse and rehabilitation, consider personal deterrence as requiring significant weight, particularly in the light of the sentence that must be imposed, having regard to the other purposes of sentencing. A sentence of full-time imprisonment is required: cf s 5 of the Crimes (Sentencing Procedure) Act.

50. Like the sentencing judge, I am not of the view that one offence requires a longer sentence than the other. I am of the view that, having regard to the issues addressed in the psychological report, and the evidence of the applicant’s progress in custody, there are special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act. After allowing a discount of 25% for the pleas of guilty, I regard a sentence of 3 years with a non-parole period of 2 years as appropriate in each case.

51. I am not of the view that there is any call for cumulation between the sentences. While there were two letters, the evidence suggests they were prepared at the same time, and with the intention that they be read together. Both letters were intended to be used for the bail application and on sentence. The applicant could have just as easily written a single letter which purported to refer to what had been said in an earlier letter. This case is more like Johnson v The Queen [2004] HCA 15; 78 ALJR 616 than Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17. Given this, while the preparation of the two letters, strictly speaking, involved separate acts, I am of the view that the sentence to be imposed for each offence is capable of encompassing the overall criminality: see generally R v XX [2009] NSWCCA 115; 195 A Crim R 38. Both sentences will therefore commence from the date the applicant entered custody on 6 April 2020.

Orders

52. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentences imposed in the District Court on 6 November 2020 by his Honour Judge Colefax SC.

4. In lieu thereof, with respect to each count on the indictment, sentence the applicant to imprisonment for a non-parole period of 2 years commencing on 6 April 2020 and concluding on 5 April 2022 with a balance of term of 1 year which is due to expire on 5 April 2023.

5. I note that the applicant became eligible for parole on 5 April 2022.

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Amendments

27 June 2022 - [25] cases italicised

Decision last updated: 27 June 2022