Einfeld v R - [2010] NSWCCA 87

No judgment structure available for this case.

Reported Decision: 200 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: EINFELD v REGINA [2010] NSWCCA 87

HEARING DATE(S): 24 and 26 February 2010

JUDGMENT DATE:
5 May 2010

JUDGMENT OF: Basten JA at 1; Hulme J at 192; Latham J at 196

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: APPEAL – criminal – sentencing – offences of perjury and perverting the course of justice – conduct of former judicial officer – relevant considerations: psychological condition, extra-curial punishment, public humiliation and vilification - APPEAL – criminal – sentencing “circumstances of aggravation” – uncharged unlawful conduct – application of The Queen v De Simoni [1981] HCA 31 - 147 CLR 383 - APPEAL – criminal – sentencing – accumulation of sentences – concept of “crushing” burden – whether aggregate sentence “just and appropriate” - EVIDENCE – criminal appeal – further evidence of psychological condition at time of sentencing

LEGISLATION CITED: Crimes Act 1914 (Cth), s 43
Crimes Act 1900 (NSW), ss 319, 327
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Code (WA), s 689
Supreme Court Act 1970 (NSW), s 75A

CATEGORY: Principal judgment

CASES CITED: Barton v Regina [2009] NSWCCA 164
Bellenden v Satterthwaite [1948] 1 All ER 343
Bourke v R [2010] NSWCCA 22
Cavanagh v R [2009] NSWCCA 174
Clarke v R [2009] NSWCCA 49
Clinch v R (1994) 72 A Crim R 301
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
GAS v The Queen [2004] HCA 22; 217 CLR 198
Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308
Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; 205 FLR 217; 60 ACSR 1; 165 A Crim R 151
Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312
Huntingdon v R [2007] NSWCCA 196
House v The King [1936] HCA 40; 55 CLR 499
Jadurin [1982] FCA 215; 44 ALR 424; 7 A Crim R 182
JM v R [2008] NSWCCA 254
Kelly v The Queen (1992) 33 FCR 536
Kenny v R [2010] NSWCCA 6
Mamarika v R [1982] FCA 94; 63 FLR 202; 42 ALR 94; 5 A Crim R 354
Markarian v The Queen [2005] HCA 25; 228 CLR 357
McCullough v R [2009] NSWCCA 94
Mill v The Queen [1988] HCA 70; 166 CLR 59
Nguyen v R [2008] NSWCCA 280
Norbis v Norbis [1986] HCA 17; 161 CLR 513
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
Queen v Rouse (unrep, 19/10/1990, TasCCA)
R v Allpass (1993) 72 A Crim R 561
R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
R v Borkowski [2009] NSWCCA 102; 52 MVR 528
R v Daetz [2003] NSWCCA 216; 139 A Crim R 398
R v Farquhar, (unrep, 29 May 1985)
R v Fidow [2004] NSWCCA 172
R v Geddes (1936) 36 SR (NSW) 554
R v Huchison [1972] 1 WLR 398
R v Koumis [2008] VSCA 84; 18 VR 434
R v M (CA) (1996) 105 CCC (3d) 327
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v MacNeil-Brown [2008] VSCA 190; 20 VR 677
R v Minor (1992) 79 NTR 1; 105 FLR 180; 59 A Crim R 227
R v Morex Meat Australia Pty Ltd and Doube [1995] QCA 154; [1996] 1 Qd R 418
R v Munday [1981] 2 NSWLR 177
R v Murphy (1985) 4 NSWLR 42
R v Rivkin [2003] NSWSC 447; 198 ALR 400; 45 ACSR 366
R v Rossi (unrep, SACCA, 20 April 1988)
R v Rowell [1978] 1 WLR 132
R v Simpson [2001] NSWCCA 534 ; 53 NSWLR 704
R v Taouk (1992) 65 A Crim R 387
R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
Re Electric Refrigerators (1963) 2 CMLR 289
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82
Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284
Regina v Stambolis [2006] NSWCCA 56; 160 A Crim 510
Ryan v The Queen [2001] HCA 21; 206 CLR 267
South-West Africa Cases (Second Phase) (1966) ICJR 6
Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461
Ta’ala v R [2008] NSWCCA 132
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73
Wong v The Queen [2001] HCA 64; 207 CLR 584
Zaharos v R [2008] NSWCCA 336

TEXTS CITED: DSM IV (3rd revision)
I Potas, Sentencing Manual: Law, Principles and Practice in New South Wales, (2001, Judicial Commission (NSW), LawBook Co) Chs 5 and 6
Thomas, Principles of Sentencing (2nd ed, 1979) p 56

PARTIES: Marcus Richard Einfeld – Appellant
Regina – Respondent

FILE NUMBER(S): CCA 2008/0240

COUNSEL: I Barker QC/D R Campbell SC – Appellant
L A Babb SC/M L Rabsch – Respondent

SOLICITORS: Verekers Lawyers – Appellant
S Kavanagh (Solicitor for Public Prosecutions) – Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2008/0240

LOWER COURT JUDICIAL OFFICER: James J

LOWER COURT DATE OF DECISION: 20 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION: R v Einfeld [2009] NSWSC 119

CCA 2008/0240

BASTEN JA
RS HULME J
LATHAM J
5 MAY 2010

Marcus Richard EINFELD v REGINA

Headnote

On 31 October 2008 the applicant pleaded guilty in the Supreme Court to a charge of perjury and a separate charge of perverting the course of justice. Both charges arose out of an incident on 8 January 2006 when the applicant’s car was recorded by a Roads and Traffic Authority camera in Mosman travelling in excess of the speed limit. On 7 August 2006 he gave evidence in the Local Court denying that he had been driving the vehicle at the relevant time. That false denial constituted the basis of the charge of perjury.

When giving evidence in the Local Court, the applicant had identified another person as the driver of the car. Inquiries by a journalist suggested that the person nominated had died some years earlier. The police initiated an investigation. The applicant provided a written statement to police which was false in a number of particulars. The provision of that statement was the basis of the charge of perverting the course of justice.

On 20 March 2009, in the Supreme Court, James J sentenced the applicant on the count of perjury to a non-parole period of 14 months, commencing on that day, with a balance of term of seven months, giving a sentence of 21 months imprisonment. On the second count his Honour sentenced the applicant to a non-parole period of 15 months, commencing on 20 December 2009, with a balance of term of 12 months, giving a sentence of two years, three months imprisonment. The sentences being partly concurrent, the period of mandatory imprisonment was two years, with an additional term of one year, giving a total sentence period of three years.

The applicant sought leave to appeal against the severity of his sentence on a number of grounds. One ground concerned his psychological condition. On 28 October 2009 this Court (differently constituted) granted the applicant leave to adduce further evidence before this Court with respect to his psychological condition. That evidence sought to establish that at the time of sentence he suffered from a previously undiagnosed bipolar mood disorder.

The applicant sought to challenge the severity of the sentences imposed on him on the following grounds:

(i) failure to take into account his psychological condition;

(ii) error in assessing seriousness of the offences;

(iii) failure to give adequate weight to extra-curial punishment and public humiliation suffered;

(iv) giving an inadequate discount for the pleas of guilty;

(v) in relation to count 1, taking into account uncharged offences;

(vi) in relation to count 2, taking into account numerous elements of falsity;

(vii) in relation to count 2, taking into account false statements to a journalist;

(viii) in accumulating the sentences, failing to act on a prosecution concession;

(ix) imposing excessive sentences.

The Court granted leave to appeal; by a majority (RS Hulme and Latham JJ, Basten JA dissenting) the appeal was dismissed.

In relation to grounds (i)–(viii), the Court held (per Basten JA, RS Hulme and Latham JJ agreeing):

In relation to (i)

1. The further evidence tendered on the appeal did not demonstrate that the applicant was suffering from a previously undiagnosed bipolar disorder: [68]–[71].

In relation to (ii)

2. The trial judge did not err in taking into account that the applicant was a barrister and had for many years been a judge of a superior Court; these were factors of great significance: at [81]. His status and experience not only rendered him capable of appreciating fully the seriousness of the offences, but also rendered the offences more serious than they would otherwise have been: at [82]–[83].

3. The sentencing judge was entitled to take into account effective “punishment” of the applicant which arose beyond the confines of the sentences imposed by the Court: these factors included the revocation of his commission as Queen’s Counsel and the non-renewal of his practising certificate: at [92] and [95].

R v Daetz

R v Rivkin

Regina v Rivkin

Kenny v R

4. These factors were taken into account and given adequate weight by the sentencing judge: at [97].

5. It was appropriate for the sentencing judge to take into account the public opprobrium he had suffered and the public destruction of his reputation: at [98].

Ryan v The Queen

Kenny v R

6. The sentencing judge did not err in his approach to these matters. He was also entitled to take into account, as a matter of aggravation, that the applicant had allowed himself to be addressed by the title “Justice” in giving evidence, at a time when he was not a judicial officer: at [109].

7. His Honour reduced the sentence which would otherwise have been appropriate in recognition of the utilitarian value of the pleas of guilty: at [114]. The allowance was not inappropriate, given that the pleas were not entered at the earliest stage available in the proceedings: [123].

R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383; R v Borkowski [2009] NSWCCA 102; 52 MVR 528; Regina v Stambolis [2006] NSWCCA 56; 160 A Crim 510; Nguyen v R [2008] NSWCCA 280 applied.

8. The charge of perverting the course of justice was correctly formulated in terms of a single act of making a statement to police. The sentencing judge was not in error in taking into account the fact that the statement was false in numerous respects: at [132].

Hannes v Director of Public Prosecutions (Cth) (No 2)

R v Rowell

R v Morex Meat Australia Pty Ltd and Doube

9. The separate false statements did not need to be the subject of separate charges, nor was it incorrect to take them into account as elements of aggravation in respect of a single offence: at [139].

The Queen v De Simoni

McCullough v R

Bourke v R

10. Similarly, in relation to count 1, the sentencing judge did not err in taking into account necessarily false statements in relation to the single count of perjury, namely that he was in another place at the time of the offence involving his motor vehicle and that he had lent the vehicle to another person: at [148].

The Queen v De Simoni [1981] HCA 31; 147 CLR 383; R v Huchison [1972] 1 WLR 398; Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308 referred to.

In relation to (vii)

11. The statement made to the journalist following the evidence given by the applicant in the Local Court was not the subject of a separate charge. The sentencing judge took it into account as evidence showing that the falsities in the statement provided to the police which formed the basis of the second count were the subject of “considerable planning”. His Honour was entitled to use the conversation with the journalist in that manner: at [151].

12. The concession by the Director of Public Prosecutions that there was “substantial commonality” between the two counts and that the sentences should be substantially concurrent, did not bind the sentencing judge. His Honour did not disregard the view of the prosecution, but did not accept it in full. That course was not erroneous: at [159].

GAS v The Queen [2004] HCA 22; 217 CLR 198; The Queen v Olbrich [1999] HCA 54; 199 CLR 270 applied.

(per RS Hulme and Latham JJ)

13. The sentences imposed for the individual offences were not beyond the range available to the sentencing judge. His Honour took into account in fixing the sentences the effects on the applicant’s health of a period spent in custody. The period of two years mandatory custody was not beyond the available range, nor was any error in principle demonstrated in fixing that period. It would have been erroneous double-counting to take into account the effect of the sentence on the applicant’s physical and mental health by reference to the non-parole period, it having been taken into account in fixing the overall sentence: [192] and [198]–[199].

R v Simpson [2001] NSWCCA 534 ; (2001) 53 NSWLR 704; R v Fidow [2004] NSWCCA 172; Huntingdon v R [2007] NSWCCA 196; Zaharos v R [2008] NSWCCA 336; Clarke v R [2009] NSWCCA 49 applied.

(per Basten JA dissenting)

14. The sentences, taken individually, were not outside the appropriate range. However, the period of mandatory custody was imposed without specific reference to the cumulative effects on the applicant’s physical and psychological conditions. His Honour was in error in taking those factors into account only in fixing the overall length of the sentence: at [186]–[189].

Ta’ala v R

Barton v Regina

Mill v The Queen

Postiglione v The Queen

R v Rossi

Kelly v The Queen

R v M (CA)

House v The King

Clinch v R

R v MAK

Cavanagh v R

15. The applicant should be resentenced so that the effective period of mandatory imprisonment is reduced from two years to 18 months: at [191].

CCA 2008/0240

BASTEN JA
RS HULME J
LATHAM J
5 MAY 2010

Marcus Richard EINFELD v REGINA

Judgment

BASTEN JA

INDEX

Paragraph
(1)	Background and outcome	1
(2)	Material before sentencing judge	4
(3)	Evidence of psychological condition	31
(a)	evidence before sentencing judge	31
(b)	application to call further evidence	35
(c)	evidence of Dr Durrell	51
(d)	conclusions: psychological evidence	68
(4)	Issues on appeal – relevant factors	72
(a)	general principles	73
(b)	the seriousness of the offences	79
(c)	extra-curial punishment	85
(d)	public humiliation and vilification	98
(5)	Guilty plea: appropriate discount	112
(6)	Issues on appeal: specific matters	126
(a)	particulars of false statement	127
(b)	taking into account other false statements (uncharged)	140
(c)	taking into account conversation with journalist	149
(7)	Accumulation: disregarding prosecution concession	152
(8)	Determining sentences - factors personal to applicant	160
(a)	evidence before sentencing judge	162
(b)	approach to sentencing	167
(c)	degree of accumulation	171
(d)	allowance for poor health – mandatory custody	173
(9)	Sentencing range	175
(10)	Conclusions	179
(a)	error identified - mandatory custodial period	179
(b)	resentencing	190

1 By indictment dated 20 October 2008, the Director of Public Prosecutions (NSW) charged the applicant, Marcus Richard Einfeld, with two offences. The first, perjury, was laid under s 327 of the Crimes Act 1900 (NSW). The second, perverting the course of justice, was laid under s 319 of the Crimes Act. On 31 October 2008, before James J in the Supreme Court, the applicant pleaded guilty to each of the charges. His Honour, by judgment delivered on 20 March 2009, sentenced the applicant to the following terms of imprisonment:

Count 1 – perjury – a non-parole period of one year two months (14 months), commencing on 20 March 2009 with a balance of term of seven months, giving a total sentence of 21 months imprisonment.

2 Because of the respective commencement dates, providing for nine months of the first sentence to be served before the commencement of the second sentence, the overall result provided a period of mandatory imprisonment of two years, with an additional term of one year, giving a total sentence period of three years.

3 The applicant seeks leave to appeal against the severity of the sentences, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). For reasons set out below, there are grounds which warrant a grant of leave to appeal in respect of each sentence; the challenge to the overall sentence periods should be rejected, but the effective period of mandatory custody should be reduced from two years to 18 months.

(2) Material before sentencing judge

4 The elements of each offence, the surrounding circumstances, relevant findings of fact and inferences drawn from the facts have been set out in careful detail by the sentencing judge: R v Einfeld [2009] NSWSC 119. The only significant factual matter to which express reference is not made in that judgment is an aspect of the gravity of the offence and is not favourable to the applicant. Apart from identifying that matter, the facts will be summarised only in sufficient detail to address the grounds of appeal.

5 On 24 February 2010, on the commencement of the hearing of the application, senior counsel for the applicant sought to lead evidence from Dr Anthony Durrell, a consultant psychiatrist not called on the sentencing hearing, and also sought to tender a further report from Dr Jonathan Phillips, the consultant psychiatrist who had provided a report for the applicant on sentencing. According to Dr Durrell, at the time of sentencing the applicant suffered from a previously undiagnosed and untreated bi-polar mood disorder, which was said to affect “the true significance of facts which were in existence at the time of sentence and/or [explain] the facts …”: ground 5. Dr Durrell’s opinion was not one which Dr Phillips adopted. Further, counsel for the Director sought to call evidence in reply from a third psychiatrist, Professor David Greenberg. It will be necessary in due course to consider the bases upon which each part of this material was tendered, the manner in which this Court can place weight upon such material and the content of the opinions expressed. However, because all that material must be viewed in the evidential context provided at the sentencing hearing, it is convenient first to set out the background to the sentencing proceedings, namely the evidence called before the sentencing judge and the findings made by his Honour.

6 The primary facts were placed before the sentencing judge by way of a statement prepared by the prosecution. No issue was taken with the correctness of the statement, although the applicant objected to the relevance of some matters. His Honour overruled those objections and there is no challenge to those rulings: at [6].

7 The circumstances of the two offences may be summarised briefly. On 8 January 2006, the applicant’s vehicle was photographed by a camera installed by the Roads and Traffic Authority in Macpherson Street, Mosman, travelling at 60kph in a 50kph zone: at [16].

8 Ten days later, on 18 January 2006, a penalty notice was issued and sent to the applicant. The applicant later gave evidence that he made a statutory declaration in response to the notice, but the declaration appears to have gone astray. On 12 March 2006, he signed a “Court election notice” as a result of which the matter was listed for hearing in the Local Court.

9 On 6 May 2006 he completed a “written notice of pleading” indicating his intention to plead not guilty. That document was witnessed by a solicitor. Attached to the document was a letter written by the applicant addressed to the “Presiding Magistrate of the Local Court of New South Wales”. The letter, which was tendered in evidence, was headed “The Hon Justice Marcus R Einfeld AO QC PhD”. The letter stated in part:

“I am the defendant and the vehicle involved is mine but as I informed the Police in the notice returned at the time, my plea of not guilty is because I was not the driver of the car at the time and place stated. In fact I do not know the area where it occurred at all. On that day my car was in the control of a visiting friend from the United States to whom I lent it for a couple of days. … She did not tell me where or with whom she had been driving or that she had been photographed speeding before returning to the US where she was unfortunately involved in a motor vehicle accident and died so I cannot get any more details.

10 On 7 August 2006 the applicant gave evidence in the Local Court, including the following answers given to questions asked by his solicitor:

“Q. Justice Einfeld, do you recall where you were on 8 January 2006?
A. Yes, I was in Forster.
…
Q. Did you take your vehicle with you?
A. No.

Q. What did you do with your vehicle?
A. I lent it to an old friend of mine who was visiting from Florida.

Q. I think that was Professor Theresa Brennan?
A. Yes, it was.
…
Q. I think that some time after the 8 ^th you received a notice advising that she had committed an offence whilst having your vehicle?
A. I did.

Q. Did you complete that statutory declaration which nominated her as the driver of the vehicle at the time of the offence?
A. I did.

11 This evidence was the subject of the perjury charge.

12 The late professor Teresa Brennan was a friend of the applicant. She had been born in Australia on 5 January 1952, but lived and worked in Florida, USA, in January 2002. She had returned to Australia to celebrate her 50^th birthday and visit family and friends, but had not returned to Australia after 26 January 2002. On 10 December 2002, she had been struck by a vehicle near her home in Florida and had died in hospital on 3 February 2003, almost three years before the speeding offence. In January 2003 a cousin of the deceased had informed the applicant of the accident and subsequently of Ms Brennan’s death, advising him of the time and place of a proposed requiem service for her to be held in Melbourne.

13 On 7 August 2006, after the applicant had given evidence in the Local Court, he had a conversation with a reporter from The Daily Telegraph, Ms Viva Goldner. His Honour’s reliance on that conversation was the subject of a challenge on the appeal and the detail of the conversation is set out below at [149]. Relevantly, the applicant conceded that the person identified as Professor Teresa Brennan of Florida was dead and that he had attended her funeral.

14 On 9 August 2006, the applicant made an oral statement to a Channel 9 journalist in the chambers of his then senior counsel. The applicant’s statement included the following:

“I categorically deny that I was the driver of my car on 8 January 2006 in Mosman. … If I had committed this speeding offence I would have paid the fine like any other responsible citizen. I am advised that my licence was not at risk at that time, or now. I would not even think of misleading a court. The suggestion that I have done so is hurtful because it contradicts everything I have always stood for. As I said in court, I am uncertain as to who was driving the car at the time, but I did authorise an old acquaintance to use it while I was out of town. As the matter is now apparently sub judice, it will be obvious that I cannot say anything more on the subject at this time[.] I have authorised my lawyers to act on my behalf in dealing with the intense media attention which is of considerable worry to my family. They will also represent me if this matter should go any further. I again unequivocally and categorically deny any suggestion of wrongdoing on my part.”

15 The next part of the statement of facts on sentence set out the events which gave rise to the charge of perverting the course of justice (par 15):

“On 10 August 2006, NSW Police commenced an investigation into whether or not Einfeld had committed Perjury when he gave his evidence on 7 August 2006. On 24 August 2006 police, at the request of Einfeld’s barrister, Mr Winston Terracini, SC, attended at Mr Terracini’s Chambers in Sydney. At his Chambers, Mr Terracini SC handed to police four (4) signed statements. These statements included a statement from Einfeld dated 23 August 2006 ….”

16 The statement was detailed, running to 82 paragraphs and 20 typed pages. The statement confirmed the applicant’s assertion that he was not driving his vehicle when it was photographed on 8 January 2006 and that he had lent the car “to a woman who told me her name was ‘Brennan’.” He stated:

“I had met Brennan in 1992 at a refugee camp in Bangladesh on a visit made with an AUSTCARE team. My recollection is that she introduced herself to me as ‘Terry Brennan’ but I also recall other people referring to her as Teresa or Terese.”

17 In this statement, the applicant accepted that he was in Sydney on 8 January 2006 (the day of the speeding offence) and said he had been present on that morning when “Brennan” had borrowed his car. After collecting his mother, who was going out with other members of the family, he arrived back at his house:

“When we arrived back home Brennan was outside the house. I had not seen her for many years but she said:

‘Hello Marcus.’

And I realised who she was. She is of average height (not higher than my shoulder) slim build with hair that is brownish, that is neither dark nor blonde. She was wearing a white or light fawn top, light pants and flat shoes. I thought she was in her mid to late forties, perhaps fifty.”

18 He asserted that it was only after he had lent her his car that he recalled an arrangement to go to lunch with Ms Vivian Schenker. To meet that commitment, he stated that he returned to his mother’s home and borrowed her car. He gave an explanation for thinking that he had been in Forster on the day in question. He also gave an account of how he came to hear that “Brennan” had died. He stated:

“I do not know where I was when I received that call. I was shocked. I do not think I even asked where or how she died. My first thought was of my friend Theresa Brennan who had lived in Florida. I am not certain the caller said that the accident was a car accident. I just concertinaed the two happenings in my head.”

19 Under the heading “Police involvement” the applicant stated (at par 80):

“As the sensationalism grew it became obvious that there would have to be some police involvement. In fact I wanted my lawyers to try to get the police involved and I told them to tell the police that I would cooperate fully. I believe I am doing so by providing this statement and records. I have of course instructed my lawyers and many friends to search the Internet for any possible person who might have been this woman. The problem is that I do not know under which name she went except in her association with me and I do not know in which country she died apart from the fact that the caller who informed me of her death had an American or Canadian accent.”

20 A number of the matters referred to above became the subject of further inquiries. First, police reviewed footage of film from a security camera at the garage of the applicant’s mother’s apartment. The result was that on 8 January 2006 “no movement whatsoever of either entries or exits, w[as] observed of any vehicle matching the description of [the applicant’s mother’s vehicle]”.

21 Secondly, a search was conducted of immigration records in relation to passengers with the name “Theresa or Teresa Brennan and any names with a similar spelling”. Only one person was identified, who was contacted and who had “never head of anyone named Marcus Einfeld and [had] never been to Bangladesh”. The evidence continued:

“No other person by the name of Theresa Brennan, or with a similarly spelt name, ever came to Australia during the relevant period.”

22 In a statement prepared on 22 August 2006, Ms Vivian Schenker had confirmed the details given by the applicant of their lunch on 8 January 2006 and had confirmed that he had collected her in his mother’s car. Ms Schenker was interviewed by police on 15 February 2007. In the course of the interview she said that her statement was not true and that the applicant had been driving his own car on the day in question.

23 In relation to the applicant’s driving record at the time of the offence, the prosecution statement recorded:

“In January 2006 the offence of exceeding the speed limit <15km/h attracted three demerit points and a $75 fine. An analysis of Einfeld’s driving record for the relevant period indicates that, as at 8 January 2006, Einfeld had accumulated eight demerit points in the preceding three years due to three speeding offences …. Accordingly he had only four demerit points left on his licence. If he was convicted for the 8 January 2006 offence he would have accumulated 11 demerit points within a three year period commencing on 11 June 2003. As at 8 January 2006 he was not therefore facing license [sic] suspension but was (up until 10 June 2006) in a perilous position in terms of demerit point accumulation. The period of suspension imposed if a driver accumulates 12-15 demerit points within any three year period is three months.”

24 The sentencing judge also had before him the applicant’s traffic record report, a pre-sentence report prepared by an officer of the Probation and Parole Service and many detailed references from respected members of the community who had known the applicant in a variety of circumstances and activities, over many years. Their evidence was identified by the sentencing judge at [116]-[118]. His Honour noted that the prosecution “did not dispute the evidence of good character to which I have been referred” and accepted that it was relevant to his sentencing.

25 There was an evident disparity between the applicant’s extensive and long-standing commitment to “voluntary activities in legal, humanitarian, welfare and sports fields”, identified by his Honour at [116], and his concoction of a story to avoid a traffic conviction, which he willingly confirmed on oath before a Magistrate in the Local Court, together with the continuing public denials of the truth and the later statement to police which can only be described as a deliberate course of deception.

26 The applicant’s response to the charges, originally laid against him on 29 March 2007, was complicated by the inclusion of other charges which were quashed by this Court on 19 October 2008. Pleas were taken to the remaining charges on 31 October 2008. These circumstances were relevant to the degree of reduction of sentence which could properly be accorded, a matter which was the subject of challenge and will be dealt with below.

27 The evidence before the sentencing judge as to the applicant’s attitude to the offences, at various times, was to be derived from the statements made by the applicant, both orally and in writing prior to and after the laying of the charges. The applicant did not give evidence before the sentencing judge. However, his Honour referred to the statement in the pre-sentence report (Report, p 4, set out by the sentencing judge at [113]):

“In discussion with Mr Einfeld regarding his actions, he readily agreed that he remained cognizant of Teresa Brennan’s death in 2003 at the time of his written and oral evidence from May to August 2006. He was at a loss to adequately account for his offending actions, however he subsequently accepts responsibility. Mr Einfeld did not claim any significant mitigating circumstances.”

28 The report continued:

“The analysis of any contributing factors to Mr Einfeld’s pattern of similar offending behaviour may seemingly remain a matter of conjecture and is beyond the parameters of this report. However, there are aspects of Mr Einfeld’s personality and reported priorities/focus over many years … which suggest that he had often been focussed and pre-occupied with his perceived priorities, including a long-standing involvement in international legal and humanitarian issues from 1976. Mr Einfeld’s acknowledged focus was likely to the detriment of appropriate decision-making in managing the details of everyday responsibilities, including an indicated lack of balance and responsibility in family and financial commitments.”

29 When his Honour came to consider the issue of contrition, he concluded, in a passage which is not the subject of challenge on the appeal:

“163 It is clear that any contrition on the part of Mr Einfeld was long delayed. The committing of the second offence was motivated by a desire to avoid conviction for the first offence. In the interview of 9 August 2006 Mr Einfeld quite brazenly denied any wrongdoing. As I have already found, the statement of 23 August 2006 contained many falsehoods. When Mr Einfeld saw Dr Phillips in November 2006 he told Dr Phillips that somebody else had been driving his car on 8 January 2006. It was only very much later that he told Dr Phillips that what he had previously said was untrue. By the time he entered his pleas of guilty Mr Einfeld must have realised that the Crown case against him on the charges to which he pleaded guilty was overwhelming.

164 Mr Einfeld did not give evidence in the proceedings on sentence and this circumstances [sic] makes it more difficult to make a finding of contrition in his favour. However, a number of the referees who have spoken to Mr Einfeld describe recent expressions of remorse and shame by Mr Einfeld. The pre-sentence report stated that Mr Einfeld accepted responsibility for his actions.

30 It remains necessary to refer to the medical evidence. However, that was significantly augmented by further evidence given on the appeal and it is convenient to deal with the evidence at trial in the context of the further evidence.

(3) Evidence of psychological condition
(a) evidence before sentencing judge

31 A significant volume of medical evidence was tendered before the sentencing judge. That included evidence as to various physical conditions suffered by the applicant, primarily from the applicant’s general practitioner, Dr Robert Muller. This material concerned the likely effect of imprisonment on a person in the applicant’s condition and will be considered in that context below. Evidence of his physical condition also included reports from experts relating to his treatment for cancer of the prostate, which had given rise to a number of distressing side-effects.

32 The psychological evidence requires discussion in this context. At trial, this evidence came from two sources. The first was a report from Dr Ronnie Zuessman, psychologist, who had undertaken a course of psychotherapy with the applicant following a referral by Dr Jonathan Phillips, consultant psychiatrist, in June 2007. In referring to the results of psychotherapy which took place over the year from June 2007 until July 2008 Dr Zuessman stated:

“For a person who was used to relying for a lifetime upon a public persona and not used to exposing his inner self to others, Mr Einfeld made significant efforts to be introspective and then honest in therapeutic interactions. He recognised that he had developed a sense of ‘invincibility’ as the result of successfully applying himself to missions involving the greater good. He had developed a sense of being larger than life by association with significant causes and prominent events. Paradoxically, while feeling good about his achievements in social justice he began to recognise that he had developed a sense of alienation and had become self-absorbed. With these involvements attracting his energy and attention, Mr Einfeld had engaged in less self-reflection, had become somewhat disorganised in his personal life and appeared to wrestle with boundaries of entitlement, mistaking personal needs for those associated with his missionary trajectory.”

33 A report by Dr Phillips, dated 22 December 2008, noted that he had first seen the applicant in the late 1990s for management of clinical depression following orthopaedic surgery. He saw the applicant again in late 2006, again for depression. He described the applicant’s on-going psychological problems as being “principally within the domain of depression, but also with co-existing anxiety”. He considered that the applicant would suffer “a significant worsening of his psychological symptoms in the context of a fulltime custodial sentence”. He noted that the applicant was “an aging and physically unwell man and this will make the situation [including presumably his psychological condition] worse”.

34 Dr Phillips also gave oral evidence before the sentencing judge. However, that evidence did not provide much by way of elucidation or qualification. Dr Phillips’ evidence was accepted and referred to by the sentencing judge at [136]-[148].

35 On 28 October 2009 this Court (constituted by Ipp JA, Howie and Fullerton JJ) considered a motion which involved two limbs. The first, contained in paragraph 1 of an amended notice of motion filed in Court on that day, sought leave to amend the grounds of appeal to rely upon a “recent diagnosis by Dr Durrell, that the applicant had at the time of sentence suffered from, and continues to suffer from, a previously undiagnosed and untreated bi-polar mood disorder ….”: now ground 5 in the amended notice of appeal. The motion also sought, by reference to the same diagnosis, re-sentencing of the applicant “by giving effect to the opinions expressed by Dr Durrell in his report ….”: now ground 6 in the amended notice of appeal. However, the critical element of the motion was contained in the second limb, which sought an order in the following terms:

“An order that the applicant be granted leave to rely on fresh evidence at the hearing of his application for leave to appeal being:

(a) the report of Dr Anthony Durrell dated 21 October 2009 …;

(b) the report of Dr Phillip Brenner dated 9 October 2009 …;

(c) paragraph 6 of the affidavit of Robert John Tassell sworn 26 October 2009.”

36 The third item was a passage in a solicitor’s affidavit relating to the circumstances of the applicant’s imprisonment and was not relied upon as a ground of appeal, but only in the event that the Court would need to resentence, the appeal being upheld for other reasons. No order was made with respect to that material. The Court on 28 October 2009 did deal with the other two items of evidence in the following terms:

37 Counsel having no comment on the form of the proposed order, the Court announced that it made an order in those terms. No reasons were given. The appeal was not then called on for hearing because counsel for the Director had indicated that, in the event that the evidence was admitted as demonstrating a basis on which the applicant should be re-sentenced, he would wish to obtain evidence in reply.

38 The order made on the earlier occasion left the Court as presently constituted to hear the application in a somewhat awkward position. It appeared that the Director could not object to the tender of Dr Durrell’s report as a whole, but might be able to object to parts of it, depending upon other evidence which it obtained. That, as events turned out, constituted a report from Professor David Greenberg, forensic psychiatrist, dated 10 December 2009.

39 The matter became more complicated on the commencement of the hearing as a result of three additional tenders of evidence by the applicant. First, the applicant had obtained a further report from Dr Phillips, dated 23 February 2010, addressing a number of matters raised by Dr Durrell and by Professor Greenberg.

40 Secondly, the applicant sought to rely upon an affidavit of Mr Barry Toomey QC dated 18 February 2010 relating to events which appear to have occurred at some point between 1977 and 1986 when, as members of the Bar he and the applicant shared an interest in a property in the New England area of New South Wales. Mr Toomey was able, through his association with the applicant, to form a view as to his character. Supported by reference to specific incidents, Mr Toomey expressed a view in the following terms:

“It became apparent to me that Mr Einfeld was frequently in a mood which could be described as a modified form of euphoria. While in that state he would be expansive, inventive and persuasive, but showed no interest in other people’s ideas or feelings. There were also periods when he appeared withdrawn and depressed, but these were much less frequent than the other periods.

When he was in what I have described as the ‘euphoric’ periods, Mr Einfeld showed a marked lack of empathy towards the concerns of others in both personal and business matters.”

41 This affidavit, as will be seen shortly, was relied upon to give some evidential basis to views expressed by Dr Durrell.

42 Thirdly, the applicant sought to call further oral evidence from Dr Durrell in elucidation of the opinions referred to in his written report.

43 The evidence sought to be relied upon, emanating primarily from Dr Durrell, was not as to events or any state of affairs which had arisen since the sentencing of the applicant. Rather, it was said to be evidence of the applicant’s psychological state at the time of sentence. It appears to have been admitted on that basis, on the motion, pursuant to the principles stated in R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 at [10]-[11] (Howie J, Buddin J agreeing).

44 The relevance of subsequent events can readily be seen to arise where a discount has been provided for a promise of future co-operation with prosecuting authorities. In JM v R [2008] NSWCCA 254, Simpson J (with the agreement of McClellan CJ at CL and Nettle AJA) stated:

R v Willard

Antoun El Hani

R v Scullion

R v MJM

26 However, the authorities draw a distinction, not always clearly, between events or circumstances that did not exist at, or that post-date, sentencing, and events or circumstances relevant to, and casting new light on, circumstances that did exist and were known, although, perhaps, imperfectly, at the time of sentencing. The most frequent example of this is new or additional information concerning a medical condition an offender is known at the time of sentencing to have suffered.”

45 Whether the relevant “event or circumstance” is the psychological condition, or the diagnosis, is one of the matters which has not been definitively resolved. There are fine distinctions to be drawn, in a practical way, between susceptibility to and suffering from a particular condition, different degrees of a known condition and the development of a syndrome (such as AIDS) from an infection (with HIV).

46 It is commonly said that this Court is a court of error, in the sense that it exercises appellate jurisdiction, based on error in the court below, and not original jurisdiction. As explained in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [3] by Gleeson CJ and Hayne J:

House v The King

47 For that purpose, their Honours were describing the jurisdiction of the Court of Criminal Appeal of Western Australia, conferred by s 689(3) of the Criminal Code (WA), a provision which, relevantly for present purposes, is equivalent to s 6(3) of the Criminal Appeal Act.

48 It is not necessary for present purposes to explore the precise scope of the power to admit such evidence, which had not been before the sentencing judge. No objection was taken on behalf of the Director to the oral evidence of Dr Durrell: Tcpt, 24/02/10, p 2(5). Nor did the Director seek to exercise any right of objection apparently reserved in the orders made on the motion. The further report of Dr Phillips of 23 February 2010 was admitted without objection and Mr Toomey’s affidavit was read without objection: Tcpt, pp 2-3.

49 Despite the respective positions of the parties in relation to the further material, a question arises as to how this Court should approach evidence of a fresh diagnosis of a psychiatric condition said to have existed at the time of sentencing. Such evidence could have differing purposes. First, if the condition were not a recent affliction (which appears to be the inference sought to be drawn from Mr Toomey’s affidavit), such material could affect the moral culpability of an offender at the date the offence was committed. Secondly, it might demonstrate the likely impact of a custodial sentence. Thirdly, as suggested in the motion, it could cast a new light on known facts, perhaps by way of explanation of inconsistent aspects of the applicant’s character and conduct. Whether this third category is truly separate from the earlier two is unclear.

50 Because such material was not before the sentencing judge, it cannot provide a basis for identifying error on his Honour’s part, at least in the ordinary meaning of that term. It may be that “error” is established in a technical sense in that, for reasons with which his Honour was not familiar, the applicant did not have a “fair sentencing hearing” because a particular matter was not exposed. This would appear to be a somewhat artificial approach to what must be treated, in substance, as an appeal by way of rehearing. To support such an appeal, one would expect to find an express power permitting a court to admit either fresh, or further, evidence: cf, Supreme Court Act 1970 (NSW), s 75A. Absent such a power, it is usual to characterise the appeal as an appeal “in the strict sense”, namely a determination of whether the primary judge erred in applying the law in force at the time of judgment, to the materials before the Court at that time: Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 109. There is no provision equivalent to s 75A in the Criminal Appeal Act, nor in the Criminal Appeal Rules. In the absence of such a provision, the Court is presumably required to make up its own conditions respecting the admission and use of such material. Although it has been accepted that events occurring subsequent to sentence cannot form the basis of further evidence before this Court – see R v Munday [1981] 2 NSWLR 177 at 178D (Street CJ, Moffitt P and Lee J agreeing) – there is a fine line between a psychiatric condition which existed at the relevant time and a diagnosis which occurred subsequently.

(c) evidence of Dr Durrell

51 Dr Durrell prepared a written report which was dated 21 October 2009. He first saw the applicant on 12 October, then for a second time three days later on 15 October and finally, for a third time, on 21 October 2009 before preparing the report. He noted that the “assessment sessions involved considerable difficulties associated with regular ‘locked down’ periods and guard supervision logistics”: report, p 1. He did not suggest, however, that these difficulties prevented him forming a firm opinion and diagnosis.

52 His qualifications involved an MBBS(Hons) obtained in 1989, with post-graduate training in anatomical pathology. In 1994 he lectured in the Department of Neuropathology at the University of Sydney. In 1998 he completed a post-graduate course in forensic psychiatry. Apart from being a WorkCover trained assessor of permanent impairment, no other particular experience or qualifications were noted.

53 The report, after noting the visits to the applicant at Long Bay Jail, was organised under the following headings:

54 Under “History”, Dr Durrell noted that he had reviewed the reports of Dr Phillips and Dr Zuessman. He then stated:

“There are significant cross-sectional and longitudinal symptoms and signs of mental illness in this man which to date have not been fully presented to the Court.”

55 In his oral evidence he explained that “cross-sectional symptoms” referred to a manifestation occurring “in the setting of the interview at that time” and that “longitudinal symptoms” meant a “more historical account given by a patient, collateral”: Tcpt, 24/02/10, p 9 (20-30). In the fifth paragraph under “History”, without any reference to factual matters which might support a diagnosis, Dr Durrell stated:

“Upon my repeat interviews and mental state examinations of Mr Einfeld I am satisfied that Mr Einfeld suffers with a hitherto undiagnosed and consequently untreated bipolar mood disorder, namely Bipolar Mood Disorder type-2 (BMD2).”

56 Under the third heading “Diagnosis” Dr Durrell set out his conclusions under three axes apparently derived from the standard manual, known as DSM IV (3^rd revision). The relevant section of the manual was tendered in the course of the evidence. It appears that Dr Durrell’s diagnosis fell under the heading “Bipolar II Disorder (Recurrent major depressive episodes with hypomanic episodes)”.

57 The remainder of the section headed “History”, which covered four of the 15 pages of the report, provided little by way of history. Dr Durrell’s notes were subpoenaed and tendered in evidence. The only notes produced for the period up until 21 October 2009, were two diary entries. The first, for October 12, merely stated the applicant’s initials (ME) and his location. The second, curiously, was for the date October 20, which was not the date recorded in the report as the date of the third interview. When asked in cross-examination about the notes for the second interview he stated (Tcpt, 24/02/10, p 21 (35)):

“A. … They are the notes that I referred to that I haven't been able to locate. I departed from my usual practice and took an orange exercise book to the gaol and made copious notes on the first two occasions in that same book, which unfortunately I'm unable to locate at this point in time.

Q. Your usual practice is to write in your diary?
A. It certainly is a synopsis in my diary and extended notes beyond that.

58 Another matter relied upon by Dr Durrell at several points in his report (including pp 3, in two paragraphs, and 8) suggested that adverse impacts arose from aging of the brain. However, an MRI scan of 27 January 2010 indicated no significant intracranial abnormality, no significant cerebral atrophy and minimal thinning of the cerebral gyri “thought to be within normal range for age related change”.

59 Contrary to the views originally expressed by Dr Phillips, Dr Durrell thought there was “a strong possibility of an acute depressive episode following treatment and containment of his hypomania”: report, p 11. This [presumably the risk] “will necessitate close supervision and suicide watch”. Under “Prognosis”, Dr Durrell stated:

“Moreover given his advanced age, physical ailments and hitherto undiagnosed and untreated BMD-2 I would rate an extended period of incarceration beyond seven months as akin to a ‘psychological’ death sentence.

Furthermore I would predict that should Mr Einfeld be incarcerated for any significant further length of time a very high risk of permanent morbidity and his likely death in custody.”

60 Under the heading “Additional comments” Dr Durrell attempted to gauge “from a psychiatric perspective” the applicant’s “level and burden of suffering, both physical and mental, associated with his seven months incarceration”, by use of a formula. This involved multiplying the number of months by a factor to reflect his advanced age, his physical ailments, his mental illness, the solitary type of incarceration and “in an attempt to factor in the added expectation, given his former position as a judge, of adherence to the principles of law”, a further factor “to adjust for this occupational dimension”. He combined those “factors” and rated his burden of suffering as equivalent to 24 months.

61 Dr Durrell recognised that such calculations “may not be recognised as relevant to the legal perspective of the Court”: in that he was correct. The analysis is unsupported scientifically and is inconsistent with any approach hitherto adopted by courts in this jurisdiction.

62 In addition to the absence of any real history from the pages of the report, Dr Durrell gave oral evidence that he had spoken with and gained “collateral history” from the applicant’s ex-wife, his son and briefly his daughter. He was asked whether what he had been told was “consistent with [his] diagnosis”: Tcpt, p 10 (30). Objection was taken to the question on the basis that there was “no reference in the report to any collateral interviews and information being given”. There being no suggestion in the report that any such information had either been obtained or relied upon, the Court did not permit such evidence to be led in chief.

63 Dr Phillips’ further report identified the key features of the reports of Dr Durrell and Professor Greenberg, with which he had been supplied, and also referred to the opinions expressed in his own earlier report. He noted that none of Professor Greenberg, Dr Zuessman and he had made a diagnosis of bipolar depressive disorder. Dr Phillips provided a methodical analysis of the various conditions which had been raised in evidence by reference to the criteria identified for each in DSM IV. In addition to the two bipolar disorders, he noted the criteria for cyclothymic disorder which required that, over a two year period, a person had experienced hypomanic symptoms and depressive symptoms but without meeting the diagnostic criteria for either Bipolar Disorder Type I or Type II and not meeting diagnostic criteria for a major depressive disorder, such symptoms not having been absent for a period exceeding two months. Dr Phillips concluded:

“It is possible that Mr Einfeld suffers from a cyclothymic disorder, taking into consideration the opinion expressed by Dr Durrell and the comments made by Mr Toomey. …

However, it becomes important additionally to determine whether Mr Einfeld’s cognition/reasoning/insight/judgment were affected by the presence of a cyclothymic disorder, should this be the case.

It is generally agreed within my profession that a person suffering from a Bipolar Disorder Type I (manic disorder) is handicapped significantly with probable impairment/reasoning/insight/judgment.

The person suffering from a Bipolar Disorder Type II can be affected significantly by impairment of cognition/reasoning/insight/ judgment, but not to the same extent.

A person suffering from cyclothymic disorder remains within the same spectrum as a person suffering from Bipolar Disorder Type I, or Bipolar Disorder Type II, but that person is somewhat less likely to suffer impairment of cognition/reasoning/insight/ judgment.

If I am correct in believing Mr Einfeld has suffered from an adjustment disorder, then that disorder is not particularly likely to have significantly impaired his cognition/reasoning/insight/ judgment.

If I am wrong in my diagnosis and Mr Einfeld is found to suffer from a Bipolar Disorder Type II or from a cyclothymic disorder, then it remains possible that he suffered as a consequence of the disorder [an] impairment of cognition/reasoning/insight/ judgment.

In turn, if Mr Einfeld suffered from a cyclothymic disorder at the time when he committed a traffic offence and/or at the time when he committed the offence of perjury, and the offence of perverting the course of justice, then his potentially disordered mental state may have had an effect on the way he conducted himself and may have had an effect on his capacity to make rational and appropriate decisions.”

64 Professor Greenberg was of the opinion that Mr Einfeld had a previous history of adjustment disorder with a depressed and anxious mood (recurrent episodes) but now suffers from a major depressive disorder: report, p 12. Over the subsequent three pages, he analysed and discarded the possibility of a diagnosis of Bipolar II disorder: p 15. He further stated his opinion that the applicant’s “depressed mood, at the time of his offending behaviour, did not significantly impact his insight or judgment”. However, he suggested that “the depressed mood and anxiety may have played an indirect role in his offending behaviour without significantly affecting his culpability.”

65 Professor Greenberg, at pp 15-16, provided a detailed description of the physical ailments suffered by the applicant when assessed on 27 and 29 November 2009. It is not necessary to set out the details of his physical ailments, but they were in terms which were not before the sentencing judge. No doubt they would have been in evidence before his Honour had the applicant given evidence. Professor Greenberg concluded (p 16):

“Based on my psychiatric examination of Mr Einfeld I am of the opinion that currently, his mood has been reasonably stabilised. It is likely that he will continue to suffer from a moderate depression during his period of incarceration and very probably following his release to the Community. His depression and anxiety are largely related to his current stressors but are also associated with medical and ageing problems. Nevertheless, given his current situation, his condition has been stabilised and, in my view, he is receiving appropriate treatment for his various physical and mental ailments. He displays no evidence of any manic or hypomanic features. He currently displays no evidence of thoughts of selfharm or suicidality.”

66 In cross-examination, senior counsel for the applicant challenged Professor Greenberg’s statement that he was “confident that Mr Einfeld had never had an episode of hypomania”. Professor Greenberg dismissed the suggestion that one could be hypomanic for 30 years: Tcpt, p 49 (30). In effect, he adhered to the conclusion in his report (p 15), expressed in the following terms:

“He has had these enduring personality traits since his early adulthood, which have included an ambitious drive and a strong work ethic. He has a reported history of humanitarian ideals with a strong sense of social justice, and history of competence in his professional life. His history of personal achievements is not due to symptoms of a mental illness, namely Bipolar II disorder.”

67 Dr Phillips expressed a similar conclusion in oral evidence (Tcpt, p 44 (30)):

“Q. Did you, through your contact with Mr Einfeld, ever take a history that indicated severe and marked impairment in social or occupational functioning?
A. Well, I think it should be said that Mr Einfeld functioned at a very high level, in an occupational professional sense, and he had, in a social sense, many friends and a large social life. I accept that his personal life had been somewhat chaotic at times but I don't think that would suggest that there was a marked impairment of social functioning.

(d) conclusions: psychological evidence

68 Dr Durrell was alone in opining that, at the date of sentencing, and it appears at the date of offending, the applicant suffered from bipolar II disorder. That possibility was considered and rejected by both the other psychiatrists who gave evidence. There are a number of reasons why Dr Durrell’s opinion should not be accepted.

69 First, there is Dr Phillips’ knowledge of the applicant, whom he had seen on a number of occasions prior to his incarceration. Secondly, there are the qualifications and extensive professional experience of both Dr Phillips and Professor Greenberg attested by their curricula vitae which were before the Court. The same cannot be said with respect to Dr Durrell, for whom no curriculum vitae was tendered, nor can a similar conclusion be inferred from his report or his evidence. Thirdly, Dr Durrell’s report lacked the kind of structured approach necessary for the Court to be able to rely upon an expert opinion. It did not set out the history obtained and the inferences drawn from that history, nor did it apply in a careful manner the relevant diagnostic criteria to the personal history and inferences. Fourthly, an analysis of the criteria (as explained by Dr Phillips and Professor Greenberg) by reference to the personal characteristics and history of the applicant, suggests that the proposed diagnosis proposed by Dr Durrell was not available.

70 Psychiatric diagnoses are matters of impression in respect of which the Court is highly dependent upon professional judgment. It does not need to accept professional judgments and, where they differ, will need to choose between them. However, the difficulties in applying distinctions between unipolar and bipolar disorders, between the seriousness of various states of depressive disorder, the circumstances which qualify for hypomania and the inferences as to insight and judgment which may be drawn from a particular diagnosis, may make it difficult, if not impossible, for a court to accept an expert opinion which does not carefully and methodically identify a process of fact-finding, inference drawing and reasoning to a conclusion.

71 The further reports from Dr Phillips and Professor Greenberg themselves provide a more comprehensive picture of the applicant’s psychological ailments than that which was available to the sentencing judge. Nevertheless, they ultimately provide elucidation, rather than a new and different assessment of the applicant. If it were necessary to say that, without those reports the applicant had not been sentenced on a correct factual basis, that conclusion could not be reached. However, for reasons given below, there is a basis for concluding that the trial judge gave insufficient weight to both psychological and physical ailments in specifying the period to be spent in custody. As a result, the Court is entitled, in re-sentencing the applicant to take account of the additional material now before it. In doing so, however, the opinions of Dr Durrell are not accepted.

(4) Issues on appeal – relevant factors

72 Before turning to the bases upon which the applicant asserted that the sentences imposed were manifestly excessive, or otherwise attended by error, it is helpful to note the principles governing a review of his Honour’s reasons and sentence.

(a) general principles

73 The language conventionally used in this context refers to particular features of the offence itself as “objective circumstances”, whilst matters personal to the offender are referred to as “subjective circumstances” or “subjective features of the offence”: see, eg, I Potas, Sentencing Manual: Law, Principles and Practice in New South Wales, (2001, Judicial Commission (NSW), LawBook Co) Chs 5 and 6. Even if different language were to be adopted, it is difficult to identify categories which do not overlap and which have reasonably precise boundaries. For example, the fact that the applicant had, for many years, held high judicial office, was both a personal characteristic and a factor relevant to the gravity of the offence.

74 Categories of aggravating and mitigating factors are also not readily separable. That statement remains good despite the identification in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) of separate categories of aggravating factors in sub-s (2) and mitigating factors in sub-s (3). Thus the fact that an offence was “part of a planned or organised criminal activity” is said to constitute an aggravating factor in sub-s (2), whereas the fact that the offence was not such is said to constitute a mitigating factor in sub-s (3): see sub-s (2)(n) and (3)(b). Similarly, where injury, emotional harm, loss or damage caused by the offence is substantial, it constitutes an aggravating factor, but if not substantial, a mitigating factor: sub-s (2)(g) and (3)(a). Furthermore, s 21A gives only the most general guidance as to how such factors are to be taken into account. The requirement that they be “taken into account” in determining the appropriate sentence commonly leads to statements in judgments on sentence using that terminology, without clear identification of how the factors were taken into account. Anxiety to record compliance with the statutory requirements of s 21A should not be seen as a complete satisfaction of the requirements of the law in respect of those factors.

75 A separate reason why the operation of particular factors may not be fully explained in a judgment derives from reliance on the view that the sentencing process constitutes an evaluative judgment based upon an “instinctive synthesis”, which either does not permit, or at least does not require, specification of the process by which relevant factors have resulted in a specific penalty. As this Court held in Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312 at [8]:

Engert

‘A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration.’”

76 In Markarian v The Queen [2005] HCA 25; 228 CLR 357, the High Court explained that the process of instinctive synthesis should not be understood as “denying the requirement that a sentencer give reasons for the sentence passed”: at [36] (Gleeson CJ, Gummow, Hayne and Callinan JJ). After setting out a lengthy extract from the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [74]-[76], and referring to subsequent decisions in this State and in South Australia, the joint judgment continued at [39]:

Wong

77 McHugh J, writing separately in Markarian, identified the process of instinctive synthesis as “the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”: at [51]. His Honour referred to numerous judgments demonstrating the traditional support for that approach and set out the principled explanation given by Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at 555-556: see Markarian at [65]. That approach must, of course, take into account statutory requirements which in some respects impose a regime not known in former times. There is also greater weight now placed on the role of reasons, seen as an essential element in the exercise of the judicial function, in exposing the matters affecting a particular outcome. In the latter respects, McHugh J noted the importance of “the role of open justice”: Markarian at [82]. Subsequent judgments in several jurisdictions have acknowledged the need for transparency provided by carefully articulated reasons: see, eg, R v Koumis [2008] VSCA 84; 18 VR 434 at [62]-[63] (Redlich and Kellam JJA and Osborn AJA), their Honours further stating at [64]:

“The absence of reasons on matters relevant to the sentencing disposition will not of itself vitiate the sentencing decision or provide a ground for review of the sentence. Where the reasons are silent as to a matter, it will be necessary to determine whether it was material to the exercise of the sentencing discretion. If it was, the sentencing judge was obliged to take it into account. The conclusion that the sentencing judge has failed to do so or to give it sufficient weight, will then commonly depend upon whether it can be said that a markedly different sentence would have followed, had the matter been taken into account.”

78 Where, as in the present case, all the material factors were identified and said to have been taken into account, it is unlikely that any claim of error justifying appellate intervention will be made good, unless the sentence imposed was outside a reasonable range. The need to identify a permissible range is a reflection of the process of sentencing described above. It involves an evaluative judgment, giving rise to a choice, not between alternatives, but by selecting a point inside a “generous ambit within which reasonable disagreement is possible”: the phraseology being adapted from Asquith LJ in Bellenden v Satterthwaite [1948] 1 All ER 343 at 345, by Brennan J in Norbis v Norbis [1986] HCA 17; 161 CLR 513 at 540 and recently applied in an exegesis of the concept of “sentencing range” in R v MacNeil-Brown [2008] VSCA 190; 20 VR 677 at [7]-[8] (Maxwell P, Vincent and Redlich JJA).

79 Under the first (and entirely general) ground asserting that the total sentence and the non-parole period were manifestly excessive, counsel complained that his Honour must have taken into account, as aggravating factors, the applicant’s former judicial appointments and the fact that he was a barrister and Queen’s Counsel at the time the offences were committed. Such a comment was made by the sentencing judge in the course of argument, in summarising a submission of the prosecutor: Tcpt, 26/02/09, pp 83-84. A proposition in those terms did not, however, appear in his Honour’s reasons. Rather, in discussing the features of the second offence, his Honour stated at [101]:

“Mr Einfeld had been a barrister and a judge and at the time of committing the offence held a practising certificate as a barrister and still occasionally appeared as a barrister. The second offence was not committed by Mr Einfeld in the capacity of being a judge or being a lawyer. However, by reason of his career in the law he must be taken to have fully appreciated the seriousness of offences of perverting the course of justice.”

80 The appellant also complained of that consideration, noting that one “does not have to be a judge or lawyer to know that it is illegal to tell a lie on oath”. That was something “every citizen knows”.

81 Each of these complaints is misconceived. First, it is beyond question that for a senior legal practitioner and former judge of a superior court to commit offences against the administration of justice is apt to give rise to public disquiet about the integrity of the judicial system. These were offences to which the present status of, and the offices formerly held by, the applicant were of great significance.

82 There may be a public perception that an elite group in the community, such as, in this case, members of the legal profession, may tend to protect their own. However, there is a contrary risk, which may have more substance, namely that those involved in the administration of justice will have an accentuated sensitivity to the need to maintain the highest reputation possible for the incorruptibility and integrity of the system in which they operate. In such circumstances there may be a risk that judges will deal more harshly than some would think appropriate with those from within their own ranks who transgress in a way which could have a tendency to undermine those characteristics, and hence diminish respect for the rule of law in the community. Recognizing the latter danger, it should nevertheless be accepted that the applicant’s status and former office-holding rendered the offences more serious than they would otherwise have been.

83 Secondly, it is also true, as the sentencing judge recognised, that the applicant’s status and former office-holding permitted him to appreciate fully the seriousness of the offences, thus removing an element of ignorance which might otherwise have diminished the degree of culpability. It was not merely a matter of knowing that it is a crime to lie on oath or seek to pervert the course of justice: it was a matter of understanding the significance accorded to such conduct by the law and the heightened seriousness of offences when committed by a person with the applicant’s background and experience.

84 The applicant further asserted, in this context, that he was entitled to “equal, not inequal, justice”. That submission appeared to deny the relevance of his status and experience to the degree of culpability. Equality of treatment requires not merely the equal treatment of persons in like circumstances, but also the recognition of relevant difference: see Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461 at 571 (Gaudron J) quoting Judge Tanaka in the South-West Africa Cases (Second Phase) (1966) ICJR 6 at 305-306 and Re Electric Refrigerators (1963) 2 CMLR 289 at 312 (European Court of Justice). Submissions that the status and experience of the applicant and his understanding of the seriousness of the offences were irrelevant or immaterial should be rejected. The factual premise for that conclusion was conceded by the applicant in an interview with a journalist given on 9 August 2006 and set out by the sentencing judge at [36], the applicant stating:

“I would not even think of misleading a Court. The suggestion that I have done so is hurtful because it contradicts everything I have always stood for.”

(c) extra-curial punishment

85 A further complaint, related to those just considered in the sense that it also concerned the applicant’s status and experience, asserted that the primary judge had failed to give adequate weight to the serious extra-curial punishment to which the applicant had been subjected, as a direct result of the misconduct for which he was being sentenced.

86 The phrase “extra-curial punishment” appears to have two limbs, neither of which can be described with precision. That the punishment is “extra-curial” means that it is imposed otherwise than by the sentencing court. It would appear not, for example, to include consideration of the conditions of imprisonment and the impact of imprisonment on the particular offender. It is less clear whether it includes legal consequences of a kind which flow directly from the conviction or the sentence, such as disqualification from holding an office, remaining in an occupation or holding a licence. The concept of “punishment” has been treated with less rigour, suggesting that the phrase has been used on occasion in a manner which extends beyond its proper reach.

87 A thorough review of the earlier cases discussing extra-curial punishment was undertaken by James J, sitting in this Court, in R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 (Tobias JA and Hulme J agreeing). As his Honour recognised, a paradigm case of what might be described as extra-curial punishment may be found in the infliction of traditional or customary punishments by members of Aboriginal communities, including being speared in the leg: see Daetz at [46], referring to Jadurin v R [1982] FCA 215; 44 ALR 424; 7 A Crim R 182 (St John, Toohey and Fisher JJ) and R v Minor (1992) 79 NTR 1; 105 FLR 180; 59 A Crim R 227 (NT CCA, Asche CJ, Martin and Mildren JJ); see also Mamarika v R [1982] FCA 94; 63 FLR 202; 42 ALR 94; 5 A Crim R 354 (Northrop, Toohey and Sheppard JJ),. In cases not involving traditional law, such as Daetz itself, the punishment is suffered by the offender at the hands of the community, either by way of immediate response to the commission of the offence or by way of subsequent retribution: see also R v Allpass (1993) 72 A Crim R 561 (NSWCCA, Gleeson CJ, Hunt CJ at CL and McInerney J).

88 The phrase has, however, been used in an expanded sense as appears from the judgment of Whealy J in R v Rivkin [2003] NSWSC 447; 198 ALR 400; 45 ACSR 366 at [54], albeit expressed in cautious terms as to the use of the phrase.

Corporations Act 2001

148 Whether or not an offence is part of a planned or organised criminal activity is identified in the Sentencing Procedure Act as a matter of aggravation or mitigation, respectively: s 21A(2)(n) and (3)(b). It would be surprising if the law permitted such a matter to be taken into account so long as the evidence of planning (or the absence thereof) involved conduct which was not criminal, but did not permit it if the conduct itself involved a criminal activity. (If that were the general law, then such a limitation would properly be read into sub-ss (2) and (3): see s 21A(4).) However, for the reasons set out above, De Simoni does not impose such a restriction. The challenge to that part of his Honour’s reasoning must be rejected.

149 The background to this complaint was explained by his Honour in setting out the background to the second offence:

‘I have an old friend Professor Teresa Brennan of Florida. I attended her funeral after she died in a car accident … I knew another Professor Brennan, whose first name was Terese or Therese, he (that is Mr Einfeld ) was not sure of the spelling. This woman had visited Sydney this year and had also died in a car accident.”

150 In considering the second offence, his Honour noted that objection had been taken to this evidence but that it had been admitted “as showing the genesis of the false assertions made in the statement of 23 August 2006”: at [97]. The applicant does not now challenge the admission of that evidence. The underlying concern appears to have had its genesis in the illegitimate resurrection of the substance of charges originally laid, but rejected by this Court before the pleas and sentencing. The inference drawn by his Honour from the material set out above was that, having been made aware that a journalist had discovered that Professor Teresa Brennan had died prior to the traffic offence, “[t]he idea immediately occurred to Mr Einfeld to change his version of events and to assert that the person to whom he had lent his car was a different person”. His Honour continued at [98]:

“It is true that as at 7 August 2006 no police investigation had yet been commenced into whether Mr Einfeld had committed perjury in giving his evidence. However, such an investigation did commence on 10 August 2006 and the statement Mr Einfeld made and handed over to the police on 23 August 2006 was in accordance with what he had said in his conversations with Ms Goldner. It is obvious from the detailed contents of the statement of 23 August 2006 that preparation of the statement would have taken some time.”

151 The relevant inference drawn from this material was that “considerable planning went into the preparation of the statement of 23 August 2006” which was the basis of the second count: at [99]. That inference was readily available and did not involve any form of covert reinstatement of a rejected charge.

(7) Accumulation: disregarding prosecution concession

152 Ground 3 asserted that the Director had agreed that there was “substantial commonality” between the two counts and that, accordingly, the sentences should be served substantially concurrently. In fact the sentence on the second count was to commence only after nine months (50% of the non-parole period) had been served on the first count. This, it was contended, either involved permitting the prosecution to depart from the concession or failing to take adequate account of the Director’s concession.

153 Evidence of the concession was tendered and admitted. It was contained in an email from an officer with the Director of Public Prosecutions to senior counsel for the applicant, dated 28 October 2008. The passage relied on stated:

“The Crown would agree that the statement giving rise to this charge (s 319) was an extension of the conduct giving rise to the perjury. The Crown agrees that the accused should not be doubly punished in respect of areas of commonality. The accused should only be punished for additional criminality involved. The Crown would agree that there is substantial commonality. Nevertheless the question of additional punishment will be a matter for the sentencing judge to assess.”

154 This issue was raised before the sentencing judge and was dealt with at [103]-[108]. He set out the terms of the concession in full at [105] and noted ] the applicant’s submission that, on the basis of the concession, the sentences should be substantially concurrent: at [106]-[107. His Honour stated at [108]:

“I do not consider that I should accept counsel for Mr Einfeld’s submissions. It is, perhaps, unfortunate that the Crown in the email stated its agreement that the conduct in committing the second offence was an ‘extension’ of the conduct in committing the first offence and that there was ‘substantial commonality’ in Mr Einfeld’s conduct in committing the two offences. However, any agreement that might have been made was that there was substantial commonality, and not complete commonality, and the author of the email was careful to add, correctly, that the question of punishment for the second offence would be a matter for the sentencing judge. In any event, whatever arrangement might have been made between the Crown and Mr Einfeld’s legal representative, it is not binding on me and I have to impose what I consider to be an appropriate sentence for the second offence, as well as for the first offence.”

155 In his initial submissions in this Court, counsel identified the complaint in the following terms (par 17):

“The applicant pleaded guilty pursuant to an agreement between his counsel and the Director of Public Prosecutions. Agreement was not reached as to all the facts which were relevant to sentence, but it was reached as to some facts and as to the degree of commonality between the two offences.”

156 In supplementary written submissions, the matter was taken a step further, by way of justification of the agreed position (at pars 17-19):

“The events leading to the commission of the second offence should be viewed as arising from the first offence rather than as evidence of cunning planning. … [The evidence of other statements] should be regarded as lies told by a depressed person under extreme pressure and emotional stress at the prospect of having his career and a life’s work destroyed by the first offence.

It ought not be concluded that the second offence was committed after a calm reflection of the situation followed by a carefully formed manifestation of an intention to tell further lies. The proper view is that the applicant acted as he did because of his serious psychological condition and relentless news media pressure.

157 No purpose is served by analysing the extent to which the submissions for the Director before the sentencing judge departed from an agreed position. There would have been no departure in contending for a sentence on the second offence which was at least partly cumulative with the first offence. Further consideration of that aspect is unnecessary because it is clear that the sentencing judge considered himself free to assess the relevant level of accumulation, regardless of any position taken on behalf of the Director, either before or during the sentencing proceedings.

158 The applicant sought to call in aid of this ground the analysis undertaken of “principles affecting plea agreements” by the High Court in GAS v The Queen [2004] HCA 22; 217 CLR 198 at [27]-[31]. However, that exegesis does not assist the applicant. GAS makes it clear that the decision to plead to a charge is entirely a matter for the accused person, in the light of professional advice, which is the responsibility of his or her legal representatives: at [29]. Their Honours reiterated that “it is for the sentencing judge, alone, to decide the sentence to be imposed”: at [30], citing The Queen v Olbrich [1999] HCA 54; 199 CLR 270. Their Honours said, at [31], that “there may be an understanding, between the prosecution and the defence … but that does not bind the judge” and continued:

“It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel.”

159 It is clear in the present case that the sentencing judge formed a view as to the primary facts and drew an inference as to the respective and disparate elements of criminality involved in each offence. His Honour was entitled, indeed required, to undertake that task. In fact, so much was expressly recognised by the Director in the email. He sentenced accordingly. Whether the result was in accordance with the submissions of counsel for the Director or not, there was no procedural flaw in the process. There is no substance in the complaint that the Director departed from a “negotiated” position, nor, if he had done so, that the sentencing process in some way miscarried.

(8) Determining sentences - factors personal to applicant

160 The second ground of appeal asserted that the sentencing judge “failed to pay adequate regard to the exceptional subjective circumstances of the applicant including (i) age, (ii) health, (iii) good character, (iv) the requirement to serve his sentence in protective custody ….” The ground also referred to extra-curial penalties and adverse publicity, which have been separately dealt with above.

161 In written submissions, apart from points dealt with elsewhere, little was said other than that the sentence itself was reflective of a failure to give adequate weight to these considerations. That assessment requires an understanding of the appropriate range within which his Honour was sentencing.

(a) evidence before sentencing judge

162 Before turning to those matters, it is convenient to say something more about the personal circumstances. Disregarding the further evidence tendered by the applicant before this Court, there was undoubtedly powerful evidence before the sentencing judge concerning the medical and psychological problems which would be faced by the applicant, if required to serve an extended period in custody. His Honour gave careful consideration to this material at [120]-[153]. He identified the relevant conditions as peripheral neuropathy, chronic cough, prostate cancer, blood irregularities, arthritis, stress and depression: at [122]. He accepted the evidence of Dr Robert Muller, the applicant’s general medical practitioner, that he suffered from each of the physical conditions other than prostate cancer: at [127]. He also accepted that, although these conditions had not prevented the applicant from leading an active life in the past, they may do so as he was deteriorating with age: at [127].

163 In respect of the reports relating to prostate cancer, his Honour expressed the view that the cancer was “under control”, although the applicant “experienced distressing side effects from the radiotherapy but the side effects are likely to settle with the passage of time”: at [135]. The medical evidence relied on for the last proposition was that “usually” dysuria settles with the passage of time, which did not provide any firm basis for concluding that the acknowledged distressing side effects would diminish significantly during the proposed period of incarceration.

164 In relation to the psychological condition of the applicant, his Honour gave careful consideration to the report prepared by Dr Jonathan Phillips, who had by then seen Mr Einfeld as a patient on a number of occasions over approximately 10 years. His Honour reached the following conclusions, at [151]:

“I accept that Mr Einfeld suffers from depression and anxiety. The major, though not the only cause, of his condition is to be found in the events of 8 January 2006 and their consequences. There is no evidence to suggest that he was suffering from depression or anxiety before 8 January 2006, apart from the evidence about his depression in the late 1990s.”

165 Although his Honour was not satisfied that there was a real risk of the applicant becoming suicidal, he accepted that his psychological condition was likely to become worse in prison: at [152]. Although he would be able to receive relevant medication, he would not be able to receive psychotherapy of a kind available had he been at liberty in the community: at [153].

166 Further, his Honour accepted the view of a number of the applicant’s referees, based on their observations of the applicant, that adverse publicity in the media had had a “devastating psychological effect on him”: at [161].

167 His Honour dealt with these various matters globally in sentencing the applicant. In sentencing him on the first offence (perjury) his Honour stated at [187]:

“ … I take into account the facts of the offence in the Crown statement, my further findings about the objective facts of the offence and my findings about the subjective circumstances of Mr Einfeld, including my findings about his career in the law, his character and his voluntary activities, his age, his physical and mental health, the extra-curial punishment he has sustained, his contrition and the likelihood of any sentence of imprisonment being served on protection in more than usually onerous conditions of custody. I also take into account the principles of sentencing I have stated.”

168 He concluded that the sentence should be one of 21 months: at [188]. His Honour dealt separately with the division into a non-parole period and a balance of term: at [190].

169 In relation to the second offence, he stated at [191]:

“… I take into account the facts of the offence in the Crown statement, my further findings about the objective facts of the offence and my findings about the subjective circumstances of Mr Einfeld, which are the same as for the first offence. I also take into account the principles of sentencing I have stated.”

170 His Honour concluded that the second offence was more serious than the first and that the appropriate sentence was 27 months: at [195].

(c) degree of accumulation

171 The next step in the sentencing exercise was to determine the question of accumulation or concurrency which he resolved by making the sentence for the second offence partly cumulative, commencing nine months after the commencement of the sentence for the first offence: at [199].

172 In fixing the relevant non-parole periods, his Honour was required to consider whether the statutory formula should apply, so that the balance of term not exceed one-third of the non-parole period. Having concluded that there should be an accumulation of the second sentence on part of the first sentence, his Honour considered that he should make a finding of “special circumstances” which would allow him to adjust the relative proportions of the second sentence. He then considered whether he should find special circumstances on any other basis: at [202]. It is necessary to set out the whole of his Honour’s reasoning in that regard:

(d) allowance for poor health – mandatory custody

173 For reasons which will be explained below, the full sentence imposed for each offence was within the relevant range, given the circumstances of the case. To the extent that the poor health and the psychological condition of the applicant were taken into account in setting the total sentences, they will have resulted, indirectly, in a reduction of the non-parole period. However, his Honour appears to have eschewed taking those factors into account specifically in relation to the minimum periods to be spent in custody. In the circumstances of the present case, they had relevance primarily to the period of mandatory custody.

174 In many cases, it will be wrong to assume that an offender will be released at the end of the non-parole period, or will not be returned, having breached parole, to serve a further period in custody. However, the applicant will be entitled to release at the completion of his non-parole period and his subsequent return to serve a further period is such a remote possibility that it may properly be ignored. In a practical sense, there was no reason to reduce a sentence which would otherwise have been appropriate, on account of health and psychological conditions, to the extent that the sentence was not to be served in custody. It may be that, in that regard, the applicant obtained a benefit to which he was not entitled. There remains the question which he is entitled to raise before this Court, namely whether the period of mandatory custody was excessive. That is a matter to which it will be necessary to return below.

(9) Sentencing range

175 The statistics for perjury available from the Judicial Commission, for the period from January 2001 until December 2007, listed only nine cases in which offenders pleaded guilty, in seven of which a prison sentence was imposed and in two of which a sentence was imposed but suspended. Of the seven cases of imprisonment, the terms varied from less than six months (one case) to between 30 and 36 months (one case). The most common sentence was in the range of six to 12 months, with one sentence each between 12 and 18 and between 18 and 24 months. In relation to consecutive terms, there were only two cases, one receiving a sentence of between 18 months and two years, the other receiving a sentence between four years and four years six months.

176 These statistics involve a small number of cases, from which it is difficult to derive any clear pattern. Further, it is necessary to take into account the changes to the law effected by the Crimes (Public Justice) Amendment Act 1990 (NSW), introducing the offences for which the applicant was convicted. Although those amendments long pre-date the statistics, earlier cases suggest that some courts have not given adequate attention to the change in the law. Sections 319 and 327(1) of the Crimes Act, as introduced in 1990, rendered a person liable respectively to 14 years imprisonment for perverting the course of justice and 10 years imprisonment for perjury in or in connection with any judicial proceeding. This effectively doubled the maximum sentences previously available for the equivalent offences. The increased severity was deliberate: as the then Attorney-General (Mr Dowd) said in introducing the Bill in the second reading:

“Offences that damage the administration of justice strike a the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end it must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. No only do offences concerning the administration of justice affect individuals, but the community as a whole has an interest in ensuring that justice is properly done.”

177 In R v Taouk (1992) 65 A Crim R 387, this Court (Badgery-Parker J, Clarke JA and Aberdee J agreeing) reviewed a number of cases, the names of some of which remain familiar, where sentences were imposed for attempts to pervert the course of justice, either under the Crimes Act (Cth), s 43 of which imposed a maximum sentence of two years, or under the Crimes Act (NSW), prior to the 1990 amendments. In R v Farquhar, (unrep, 29 May 1985), this Court imposed a sentence of imprisonment for four years, with a non-parole period of 18 months: see Taouk at p 407. In R v Murphy (unrep, 1985) a sentence of 18 months, with a minimum term of 10 months was imposed at trial under the Crimes Act (Cth): see on appeal, R v Murphy (1985) 4 NSWLR 42 at 46C. In R v Jackson (unrep, 1987) a Government Minister was sentenced to imprisonment for 10 years with a non-parole period of five years, but, with remissions, was released from custody after a period of three years, two months. In Queen v Rouse (unrep, 19/10/1990, TasCCA), an attempt to bribe a member of parliament resulted in a sentence of three years imprisonment.

178 A perusal of this material confirms the difficulty of setting a range with respect to the present offences. Accordingly, it is inappropriate to comment on any particular sentence passed since the amendments in 1990 and to which those amendments applied. As noted above, there may be some doubt as to whether the significance of the amendments has been fully appreciated by the courts in recent years. However, given the maximum penalties of 10 years and 14 years respectively, applicable to the present offences, it is not possible to say that the terms of imprisonment imposed on the applicant were beyond a reasonable range. It seems likely that the sentencing judge had considerably higher sentences in mind having reference only to the objective circumstances of the offences, before taking into account the prior good character of the applicant, and other subjective circumstances to which his Honour gave careful attention, and the discounts for pleading guilty.

(10) Conclusions
(a) error identified - mandatory custodial period

179 As noted above, the real significance of the age, physical conditions and psychological problems faced by the applicant arise in relation to the period to be served in custody. They bear little relationship to any overall sentence, except to the extent that there was a real possibility of a further period being served in custody. The importance of imposing a balance of term, during which the applicant would expect to be at liberty, subject to supervision, is to emphasise the seriousness of the offence for the purpose of general deterrence and denunciation. It seems most unlikely that the applicant will ever reoffend. To that extent, a lesser custodial sentence would have been sufficient for the purposes of specific deterrence.

180 In other circumstances, the principle of totality requires that, in imposing multiple sentences for serious offences, a sentencing court should be astute to avoid imposing a “crushing” burden on the offender. That requires consideration of the overall effect of the totality of the sentences and particularly the possibility of rehabilitation. In accordance with that reasoning, there comes a point where the need for general deterrence and denunciation must play a secondary role to considerations personal to the offender.

181 This Court has remarked, on more than one occasion, that a description of sentences as “crushing” does not articulate some applicable test: see Ta’ala v R [2008] NSWCCA 132 at [42] (Grove J, Campbell JA and Johnson J agreeing); Barton v Regina [2009] NSWCCA 164 at [26] (Giles JA, Howie and Latham JJ agreeing). Nevertheless, that language is recognised as constituting an emphatic statement of the totality principle succinctly stated in Thomas, Principles of Sentencing (2^nd ed, 1979) p 56:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.”

182 This statement of the principle was affirmed in Mill v The Queen [1988] HCA 70; 166 CLR 59. In Postiglione v The Queen [1997] HCA 26; 189 CLR 295, Dawson and Gaudron JJ described the totality principle as serving “to ensure that an offender is not subjected to ‘a crushing sentence’ not in keeping with his record and prospects”: at 304. McHugh J in Postiglione (at 308) adopted similar language from a judgment of King CJ in R v Rossi (unrep, SACCA, 20 April 1988) cited by O’Loughlin J in the Full Court of the Federal Court, in Kelly v The Queen (1992) 33 FCR 536 at 541 to the following effect:

“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”

183 Kirby J in Postiglione noted (at 340) that similar language had been adopted in the Supreme Court of Canada by Lamer CJ in R v M (CA) (1996) 105 CCC (3d) 327 at 349.

184 It may equally be said that the phrase “just and appropriate” does not articulate an applicable test, but it does state a relevant principle which the courts are obliged to apply: cf also Criminal Appeal Act, s 6(3). It is a reflection of the requirement that, for this Court to intervene, a sentence be characterized as manifestly excessive and thus “unreasonable or plainly unjust” in the sense articulated in House v The King [1936] HCA 40; 55 CLR 499 at 505.

185 It has also been recognised that the severity of a sentence increases as the sentence is lengthened, at a greater rate than the overall length of the sentence: Clinch v R (1994) 72 A Crim R 301 at 306 (Malcolm CJ); R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[17] and Cavanagh v R [2009] NSWCCA 174 at [16] (McClellan CJ at CL, Grove and Buddin JJ agreeing). Whether the last proposition is true in all cases, it is clearly applicable in the present case involving an elderly offender in deteriorating health.

186 The applicant’s age, which could hardly lessen his moral culpability, is nevertheless a significant factor in considering the effect of imprisonment. Similarly, his psychological state, whether it be the result of the conviction, the imprisonment or the adverse publicity, will mean that a period of custody will impose a greater burden on him than it might on others. His expected physical deterioration is likely to have a similar effect.

187 The applicant’s submissions with respect to the cumulative effect of his physical and psychological conditions being underestimated by the sentencing judge have some force. However, his Honour clearly took this effect into account and it is not possible to say that the guarded language used in relation to those conditions demonstrated a failure to give them adequate weight. However, such weight as they had was taken into account expressly in determining the overall sentence, but was not specifically addressed in relation to the minimum period of custody, to which they were directly relevant. That approach revealed an error in principle.

188 Weight should have been given to the effects of the psychological and physical conditions of the applicant, specifically in relation to the period of mandatory custody. Those conditions were conveniently and carefully summarised by Dr Greenberg in his evidence on the appeal in the following terms:

“[Mr Einfeld] is aged 71 years old and has significant physical ailments. He has had prostate cancer and consequently suffers from urinary problems such as hesitancy of urine, frequency of urine and some burning while voiding urine. He also reports that he has sustained frequency of his bowel habits and requires special soap because of his inflamed rectal area. He has numerous arthritic difficulties with his back, shoulder, neck, arms and legs. This causes him some distress with painful joints. As a result of a fractured femur and two surgical procedures to correct the fracture, he has some shortening of his left leg, which resulted in him having an orthopaedic shoe and a walking stick. He reports difficulty sleeping due to his arthritic pain and unsuitable mattress. He has a chronic cough, which although it has been extensively investigated, persists. Mr Einfeld has peripheral neuropathy of his feet, which results in a feeling [of] pins and needles and cramping of his feet. He reports that while in custody he has had problems with dizziness and has been seen by the General Practitioner provided by Justice Health. Mr Einfeld suffers from depression and anxiety. This depression is clearly related in part, to his current environment, as well as his aging and physical status.”

189 There is no doubt that these factors have resulted in some diminution of the overall non-parole period being served by the applicant. However, it was, in my view, erroneous to limit that consideration to the total sentence period (to which those factors had quite limited – and in some respects no – relevance) and eschew their application to the fixing of an appropriate aggregate non-parole period. The result is that, the non-parole period of 24 months constitutes a disproportionately high period of mandatory imprisonment for an elderly man in the applicant’s state of health. A particular reduction of the total sentence period will have a proportionately lesser effect on the non-parole period. In re-sentencing the applicant, the fact that some reduction of the period of mandatory custody has already been achieved must be borne in mind.

(b) resentencing

190 His Honour’s conclusions that both offences warranted periods of mandatory custody and that the offence of perverting the course of justice was, in all the circumstances, the more serious offence should be accepted. Nevertheless, on the first count an appropriate period prior to eligibility for release on parole would have been 12 months, with a balance of term of nine months, giving the same period of 21 months imposed below.

191 Given that the second count was the more serious offence, both the non-parole period of 15 months specified by his Honour, and the balance of the sentence should stand. However, the element of concurrency should be increased so as to allow the second sentence to commence after the applicant had served three months of the first sentence. The result would be to require the applicant to serve a minimum custodial sentence of 18 months, commencing on 20 March 2009 and terminating on 19 September 2010. The balance of term on the first sentence will be increased by two months, and will terminate on the date fixed at trial, namely on 20 January 2011. The balance of term on the second sentence will be unaffected, but will terminate three months earlier on 19 December 2011. There should be an order for release on parole on 19 September 2010.

192 RS HULME J: In this matter I have had the advantage of reading, in draft form, the Reasons of Basten JA and Latham J. Having regard to the detail of the circumstances of the Applicant’s offences, his relevant subjective circumstances and the issues raised in support of the appeal contained in the Reasons of Basten JA, and subject to two matters, I need not dilate upon those matters.

193 The first matter is this. One cannot but be conscious of the frequency, and it may be ease, with which psychiatrists disagree with diagnoses of other psychiatrists. I am by no means persuaded that this Court is obliged to receive as evidence in an appeal any and every fresh diagnosis made since a sentence was imposed upon the ground that the fresh diagnosis reflects a condition not fully known or appreciated at the time of a sentence under appeal. However, in light of the previous order of the Court in this appeal and the attitude of the Crown during the hearing before us, I need say no more on this topic.

194 The second matter is this. James J, having dealt at length earlier with the evidence relating to the Applicant’s health, took its incidents into account when fixing the head sentences he imposed. Later, in paragraphs [203] - [205] of his remarks on sentence, quoted by Basten JA at [172] above, it seems to me that James J did expressly advert to the significance to be attached to the Applicant’s physical and psychological conditions in the determination of the appropriate non-parole period.

195 Otherwise, I agree with the remarks of Latham J and the orders her Honour proposes for the resolution of the appeal.

196 LATHAM J: I have read the judgment of Basten JA in draft and I agree with his Honour’s conclusion that there is nothing in the further psychological evidence to suggest that the applicant was not sentenced on a correct factual basis. I also agree that the applicant has not made good any of the specific complaints advanced on the appeal against his sentence and that the sentences imposed in respect of each count were well within the range available to the sentencing judge.

197 I am unable to agree that the sentencing judge gave insufficient weight to the psychological and physical condition of the applicant in specifying the aggregate non parole period. I cannot see any basis for interference with the exercise of the sentencing discretion in that regard.

198 The sentencing judge’s approach to the finding of special circumstances is set out at [172] above and there is no need to repeat it here. It is clear that James J gave “substantial weight” to the applicant’s “poor physical and mental health and the likelihood of his health deteriorating while ... in custody” when determining the head sentences for each offence. As Basten JA notes, that results, indirectly, in a reduction of the non parole period.

199 More particularly, as James J recognised, the attribution of further weight to those factors when fixing the aggregate non parole period has a tendency to distort the sentencing exercise. Since this Court’s decision in R v Simpson [2001] NSWCCA 534 ; (2001) 53 NSWLR 704, it has been accepted that “double counting for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided”; R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ (Hulme and Adams JJ agreeing). See also Huntingdon v R [2007] NSWCCA 196; Zaharos v R [2008] NSWCCA 336 and Clarke v R [2009] NSWCCA 49.

200 In Clarke, the Chief Judge at Common Law said at [13] (James and Adams JJ agreeing) :-

R v Cramp

Cramp

R v Fidow

201 Consistent with these authorities, it cannot be said, in my view, that the applicant has demonstrated any error in the determination of the aggregate non parole period or that the aggregate non parole period is manifestly excessive, taking into account the gravity of the offences, their discrete nature, and the necessity for the aggregate non parole period to reflect general deterrence and denunciation. I am not persuaded that this was a case where those considerations played a secondary role to considerations personal to the applicant.

202 I would allow leave to appeal but dismiss the appeal.

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Einfeld v R [2010] NSWCCA 87

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CITATION:	EINFELD v REGINA [2010] NSWCCA 87
HEARING DATE(S):	24 and 26 February 2010
JUDGMENT DATE:	5 May 2010
JUDGMENT OF:	Basten JA at 1; Hulme J at 192; Latham J at 196
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	APPEAL – criminal – sentencing – offences of perjury and perverting the course of justice – conduct of former judicial officer – relevant considerations: psychological condition, extra-curial punishment, public humiliation and vilification - APPEAL – criminal – sentencing “circumstances of aggravation” – uncharged unlawful conduct – application of The Queen v De Simoni [1981] HCA 31 - 147 CLR 383 - APPEAL – criminal – sentencing – accumulation of sentences – concept of “crushing” burden – whether aggregate sentence “just and appropriate” - EVIDENCE – criminal appeal – further evidence of psychological condition at time of sentencing
LEGISLATION CITED:	Crimes Act 1914 (Cth), s 43 Crimes Act 1900 (NSW), ss 319, 327 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Code (WA), s 689 Supreme Court Act 1970 (NSW), s 75A
CATEGORY:	Principal judgment
CASES CITED:	Barton v Regina [2009] NSWCCA 164 Bellenden v Satterthwaite [1948] 1 All ER 343 Bourke v R [2010] NSWCCA 22 Cavanagh v R [2009] NSWCCA 174 Clarke v R [2009] NSWCCA 49 Clinch v R (1994) 72 A Crim R 301 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 GAS v The Queen [2004] HCA 22; 217 CLR 198 Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308 Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; 205 FLR 217; 60 ACSR 1; 165 A Crim R 151 Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312 Huntingdon v R [2007] NSWCCA 196 House v The King [1936] HCA 40; 55 CLR 499 Jadurin [1982] FCA 215; 44 ALR 424; 7 A Crim R 182 JM v R [2008] NSWCCA 254 Kelly v The Queen (1992) 33 FCR 536 Kenny v R [2010] NSWCCA 6 Mamarika v R [1982] FCA 94; 63 FLR 202; 42 ALR 94; 5 A Crim R 354 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McCullough v R [2009] NSWCCA 94 Mill v The Queen [1988] HCA 70; 166 CLR 59 Nguyen v R [2008] NSWCCA 280 Norbis v Norbis [1986] HCA 17; 161 CLR 513 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 Queen v Rouse (unrep, 19/10/1990, TasCCA) R v Allpass (1993) 72 A Crim R 561 R v Ashton [2002] NSWCCA 498; 137 A Crim R 73 R v Borkowski [2009] NSWCCA 102; 52 MVR 528 R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 R v Farquhar, (unrep, 29 May 1985) R v Fidow [2004] NSWCCA 172 R v Geddes (1936) 36 SR (NSW) 554 R v Huchison [1972] 1 WLR 398 R v Koumis [2008] VSCA 84; 18 VR 434 R v M (CA) (1996) 105 CCC (3d) 327 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v MacNeil-Brown [2008] VSCA 190; 20 VR 677 R v Minor (1992) 79 NTR 1; 105 FLR 180; 59 A Crim R 227 R v Morex Meat Australia Pty Ltd and Doube [1995] QCA 154; [1996] 1 Qd R 418 R v Munday [1981] 2 NSWLR 177 R v Murphy (1985) 4 NSWLR 42 R v Rivkin [2003] NSWSC 447; 198 ALR 400; 45 ACSR 366 R v Rossi (unrep, SACCA, 20 April 1988) R v Rowell [1978] 1 WLR 132 R v Simpson [2001] NSWCCA 534 ; 53 NSWLR 704 R v Taouk (1992) 65 A Crim R 387 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 Re Electric Refrigerators (1963) 2 CMLR 289 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 Regina v Stambolis [2006] NSWCCA 56; 160 A Crim 510 Ryan v The Queen [2001] HCA 21; 206 CLR 267 South-West Africa Cases (Second Phase) (1966) ICJR 6 Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461 Ta’ala v R [2008] NSWCCA 132 The Queen v De Simoni [1981] HCA 31; 147 CLR 383 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 Wong v The Queen [2001] HCA 64; 207 CLR 584 Zaharos v R [2008] NSWCCA 336
TEXTS CITED:	DSM IV (3rd revision) I Potas, Sentencing Manual: Law, Principles and Practice in New South Wales, (2001, Judicial Commission (NSW), LawBook Co) Chs 5 and 6 Thomas, Principles of Sentencing (2nd ed, 1979) p 56
PARTIES:	Marcus Richard Einfeld – Appellant Regina – Respondent
FILE NUMBER(S):	CCA 2008/0240
COUNSEL:	I Barker QC/D R Campbell SC – Appellant L A Babb SC/M L Rabsch – Respondent
SOLICITORS:	Verekers Lawyers – Appellant S Kavanagh (Solicitor for Public Prosecutions) – Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2008/0240
LOWER COURT JUDICIAL OFFICER:	James J
LOWER COURT DATE OF DECISION:	20 March 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Einfeld [2009] NSWSC 119