Hill v The Queen
[2021] VSCA 349
•13 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0152
| ALEXANDRA HILL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | PRIEST and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 December 2021 |
| DATE OF JUDGMENT: | 13 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 349 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1363 (Judge Hampel) |
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CRIMINAL LAW – Leave to appeal – Sentence – One charge of attempting to pervert the course of justice – Related summary offence – Forged letter of employment presented to sentencing judge – Sentence of 6 months’ imprisonment and 18 month community correction order – Whether sentence manifestly excessive – Extension of time to seek leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C K Wareham | James Dowsley & Associates |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
McLEISH JA:
On 31 August 2021, the applicant pleaded guilty before a judge of the County Court to one charge of attempting to pervert the course of justice,[1] and one related summary charge of committing an indictable offence while on bail.[2]
[1]Contrary to the common law. See also Crimes Act 1958 s 320.
[2]Bail Act 1977 s 30B.
On 16 September 2021, the judge sentenced her as follows:[3]
[3]DPP v Hill [2021] VCC 1363 (‘Sentencing Remarks’).
| Charge on indictment L11685431 | Offence | Maximum | Sentence | Cumulation |
| 1 | Attempting to pervert the course of justice | 25 years’ imprisonment | 6 months’ imprisonment, followed by 18 month community correction order | Base |
| Related summary offence | ||||
| Charge 3 | Committing an indictable offence while on bail | 3 months’ imprisonment | 1 month’s imprisonment | - |
| Total effective sentence | 6 months’ imprisonment, followed by 18 month community correction order | |||
| Non-parole period | – | |||
| Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991 | – | |||
| 6AAA statement | 3 years’ imprisonment with a non-parole period of 18 months | |||
| Other relevant orders | – | |||
The applicant now applies for an extension of time to seek leave to appeal on the ground that the sentence is manifestly excessive.
For the reasons that follow, the application for an extension of time will be refused.
Circumstances of offending
In June 2019, the applicant (who was then 26 years old) pleaded guilty in the Magistrates’ Court to a single charge of handling stolen goods.[4] In mitigation, the applicant submitted, through her lawyer, that she had recently commenced employment as a barista.
[4]For this charge, the magistrate ultimately imposed a community correction order, which included mental health treatment and drug rehabilitation conditions.
The magistrate requested proof of employment and adjourned the hearing to enable that to be done. The applicant produced to her lawyer a letter of employment, purportedly from her manager at the Little Rogue Café. The letter had the Little Rogue Café logo on it and provided mobile telephone contact details. The letter stated that the applicant had been employed at the café for eight weeks, and had disclosed her offending before she was hired. It said that she was remorseful and took responsibility for what she had done. It also said that the applicant was of good character, and a good employee, and that she feared the consequences of having a conviction recorded. The letter promised the author’s continuing support for the applicant and expressed the view that she would not reoffend.
The applicant’s lawyer duly provided the letter to the Court on the adjourned date. The matter was adjourned again so that the police could consider an order for diversion under s 59 of the Criminal Procedure Act 2009. Police quickly discovered the letter was false. The applicant had never been employed by the café. The contact details contained in the letter were those of her housemate.
The applicant’s reliance on the letter constituted charge 1 — attempting to pervert the course of justice. She was on bail in respect of the handling stolen goods charge at the time (summary charge 3 — committing an indictable offence while on bail).
As mentioned, on charge 1, the judge sentenced the applicant to six months’ imprisonment, followed by an 18 month community correction order. As no part of the one month sentence for the related summary offence was cumulated, this was also the total effective sentence.
Judge’s sentencing remarks
The judge noted that the primary offence was inherently serious, in that it struck ‘at the heart of the justice system’.[5] She characterised the applicant’s offending as relatively serious but falling short of the most serious category.[6] The relevant features of the offending included that it:
[5]Sentencing Remarks [10], citing R v Buscema [2011] VSC 206 (Nettle JA).
[6]Ibid [12].
(a) was premeditated;
(b) occurred in a curial context, involving lying to the applicant’s lawyer so that the Court would be misled;
(c) was elaborate, involving the production of a false document, the use of false contact details and the enlistment of an accomplice to verify the false document;
(d) escalated from an initial lie as to the applicant’s employment status to a more complicated scheme designed to prove that lie;
(e) persisted over time, during which there were multiple opportunities to desist;[7]
(f) was motivated by self-interest, in particular to obtain an undeserved sentencing advantage; and
(g) was dishonest and designed to avoid the sentencing consequences of an earlier dishonesty offence.
[7]The offence was alleged to have been constituted by the putting of the document before the Court on the adjourned date, but the persistence of the conduct before and after that date was properly treated as part of the context of that offending.
The judge accepted that the applicant’s guilty plea entitled her to an enhanced utilitarian benefit during the ongoing pandemic. But notwithstanding the plea, the judge did not consider that there was evidence of any significant remorse.[8] To the contrary, as part of her assessment for a community correction order, the applicant had denied writing the letter and claimed that she had been ‘set up’.[9]
[8]Sentencing Remarks [16].
[9]Ibid [45]. It was not alleged that the applicant had written the letter.
Next, the judge turned to the applicant’s personal circumstances. While the applicant did not have any prior convictions at the time, the offences were committed in the context of sentencing for an earlier dishonesty offence, in respect of which a community correction order was ultimately imposed.[10]
[10]Ibid [20]; see also n 4 above.
The judge described the applicant’s upbringing as involving considerable instability. She was exposed to alcohol abuse and family violence from a young age. Her parents repeatedly separated. She experienced a ‘serious and traumatic experience’ during her high school years, and exhibited behavioural and learning difficulties. She failed to complete the final year of high school, and moved to a commune in which drug use was prevalent.[11]
[11]Sentencing Remarks [23]–[24].
The judge described the applicant’s adulthood as characterised by aimlessness and substance abuse.[12] She has not enjoyed stable employment. Her adult relationships have involved substance abuse and intimate partner violence. The applicant’s ‘constant and indiscriminate’ drug use has included cannabis and amphetamines. One attempt at drug rehabilitation at a residential facility abroad was unsuccessful.
[12]Ibid [22], [24]–[27].
The judge referred to a report prepared by a forensic psychologist, Ms Carla Ferrari. Ms Ferrari diagnosed the applicant with post-traumatic stress disorder and stimulant use disorder. The judge considered, on the basis of Ms Ferrari’s report, that the fifth and sixth limbs of R v Verdins were enlivened.[13]
[13]Ibid [33]; R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
The judge considered the applicant’s prospects of rehabilitation to be guarded at best.[14] This was mainly because she did not consider that the applicant had shown any motivation to address the substance abuse and mental health issues which increased the likelihood of her reoffending.[15] For example, during the period of her existing community correction order, and despite its drug rehabilitation and mental health treatment conditions, the applicant had lived in a drug milieu and reported using methylamphetamine on a daily basis.[16] Her engagement with mental health treatment had been reluctant and desultory, and she appeared to be unprepared to engage in or to sustain an engagement in the sort of ‘talking therapy or treatment’ which would assist in addressing her post-traumatic stress disorder.[17]
[14]Sentencing Remarks [48].
[15]Ibid [47].
[16]Ibid [42], [44]; see also n 4 above.
[17]Sentencing Remarks [34].
The judge considered that the sentencing principles of just punishment, denunciation and specific and general deterrence assumed importance because of the seriousness of the offending.[18] The weight to be given to these principles was not greatly tempered by the applicant’s prospects of rehabilitation.[19] The judge considered that a sentence that did not involve imprisonment was not open.[20]
[18]Ibid [14].
[19]Ibid [49].
[20]Ibid.
The judge decided to impose a combination sentence, which would also give the applicant ‘every encouragement’ and ‘structured support’ to address her underlying substance abuse and mental health issues.[21] She described such a sentence as ‘more compassionate and lenient’ than might otherwise have been thought appropriate in all the circumstances.[22] This was attributable, in particular, to the increased burden of imprisonment arising from the ongoing pandemic and the applicant’s post-traumatic stress disorder, and the likelihood that she would be deported to her native New Zealand if a custodial sentence of 12 months or more was imposed.[23]
[21]Ibid.
[22]Ibid [51]–[52].
[23]Matamata v The Queen [2021] VSCA 253 [91]–[92] (Kyrou and McLeish JJA).
Extension of time
The applicant seeks an extension of time to file her notice of application for leave to appeal. In support of that application, a supporting affidavit sworn by her solicitor states that the applicant received counsel’s advice on the merits of a possible appeal the day after she was sentenced. For roughly a month, the applicant explored alternative legal representation. The time limited for filing an application for leave to appeal expired on 14 October 2021.[24] Four days later, the applicant re-engaged her present solicitors. Counsel was then briefed, and the notice of appeal and written case were filed on 28 October 2021.
[24]Criminal Procedure Act 2009 s 279(1).
It has to be said that the explanation given for failing to file within time is very unsatisfactory. There is no evidence as to what steps, if any, the applicant took to engage legal representation during the period after she received the merits advice, or any explanation at all for that period of delay. The Court has been given only an explanation of why her present solicitors did not act during that time. A solicitor’s affidavit in support of an extension of time must give the Court evidence to enable it to decide who is responsible for the delay and whether there is a satisfactory explanation for it.[25] Here, only the first of these requirements was met.
[25]Longley v The Queen [2021] VSCA 288 [13] (Priest, Kyrou and T Forrest JJA).
It is not necessary to consider this issue further, however, in circumstances where we are firmly of the opinion that leave to appeal must be refused in any event.
Proposed ground of appeal
As mentioned, the single proposed ground of appeal is that the sentence was manifestly excessive.
The applicant accepted that the offence of attempting to pervert the course of justice is a serious one, and that it was a significant matter that the offending occurred in a curial setting.
Counsel submitted that the sentence is nonetheless manifestly excessive in light of five factors:
(h) the applicant’s early plea of guilty, and the enhanced utilitarian value of that plea during the present pandemic;[26]
[26]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
(i) the applicant’s personal circumstances;
(j) the additional burden of imprisonment given the pandemic and the applicant’s mental health issues;
(k) the applicant’s limited criminal history; and
(l) the delay between offending and sentence.
The applicant accepted that the first four of these matters were expressly addressed by the judge and weighed in the applicant’s favour. The judge attributed enhanced utilitarian value to the applicant’s guilty plea,[27] discussed the applicant’s personal circumstances at some length (including her limited criminal history), and acknowledged that imprisonment would be more burdensome for her because of the pandemic and her post-traumatic stress disorder.[28] Nonetheless, it was said that the length of the sentence imposed showed that these matters must have been given insufficient weight.
[27]Reasons [15]–[16].
[28]Ibid [50].
The final factor, delay, was said to loom large in the instinctive synthesis in this case. The applicant was charged eight months after her police interview. By the time she was sentenced, more than two years had passed since the offending. While not expressly raised on the plea, it was said that the relevance of the delay ought to have been apparent to the judge on a review of the chronology.
The respondent contended that the sentence was comfortably within range for what was serious offending. With the exception of delay, the mitigatory matters pointed to by the applicant were properly accounted for by the judge. In any event, it was said that the delay was an insignificant factor: there was no evidence that it had caused the applicant any particular anxiety or harm.
Both parties referred the Court to cases said to be indicative of current sentencing practices for the offence of attempting to pervert the course of justice.
Consideration
The ground of manifest excess requires an appellant to show that the sentence was wholly outside the range of sentencing options available; that is, that it was not reasonably open to the sentencing judge.[29] It must be shown that something has gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion, without necessarily identifying what that something is.[30]
[29]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[30]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P); Nicholls v The Queen [2016] VSCA 300 [31] (Redlich and McLeish JJA and Beale AJA); Till v The Queen [2018] VSCA 122 [45] (Maxwell P, Tate and Niall JJA); Osman v The Queen [2021] VSCA 176 [97] (Priest, T Forrest and Emerton JJA).
As the applicant properly accepted, attempting to pervert the course of justice is an innately serious offence. Any attempt to pervert the course of justice must be viewed seriously and denounced appropriately.[31] This is especially so in a case such as the present where the attempt takes the form of seeking to mislead a court for personal advantage. Moreover, the applicant’s offending was not spontaneous. It was a calculated attempt to deceive the magistrate, and the police, in the interests of achieving a favourable sentencing outcome. Even accepting all the matters in mitigation upon which counsel for the applicant relied, including the delay, the sentence imposed was a modest one. That is especially so when regard is had to the maximum penalty of 25 years’ imprisonment.
[31]See Baker (a pseudonym) v The Queen [2021] VSCA 158 [35] (McLeish and Osborn JJA); Carter v The Queen [2020] VSCA 156 [70] (Niall and Weinberg JJA).
Our view of the sentence is confirmed by reference to the cases to which counsel referred for indications as to current sentencing practice.
In Zotos v The Queen,[32] this Court resentenced the appellant to three years’ imprisonment on a charge of attempting to pervert the course of justice. The appellant had pleaded guilty to providing two forged character references from former and current employers for use in a sentence appeal to the County Court. The appellant was aged 44 and had an ‘appalling’ criminal history involving a very large number of convictions for dishonesty offences, including the creation and use of false documents. The offending involved planning and attempts to enlist others to attest to the authenticity of the documents. While the present applicant, unlike the appellant in Zotos, is not an ‘incorrigible recidivist, who does not seem to give a second thought to generating false documents [for] dishonest ends’,[33] the sentence imposed in this case sits comfortably with the markedly sterner sentence in Zotos.
[32][2014] VSCA 324 (‘Zotos’).
[33]Ibid [47].
In Saleem v The Queen,[34] this Court confirmed a ‘stern’ sentence of 14 months’ imprisonment on a charge of attempting to pervert the course of justice. The appellant had pleaded guilty to providing his solicitor with two fraudulent documents which were tendered on the plea, purporting to be letters from a doctor and a religious leader. They were designed to establish ‘exceptional circumstances’ so as to avoid the restoration of two suspended sentences. The offending, as in the present case, fell between the lowest and most serious categories of offending. Again, that appellant had a long history of dishonesty offences. The present sentence, for similar offending, is again more lenient.[35]
[34][2014] VSCA 190 (‘Saleem’).
[35]See also Donohue v The Queen [2019] VSCA 160, where the Court, in refusing an application for an extension of time to seek leave to appeal, described sentences of 18 months’ imprisonment for each of three charges of attempting to pervert the course of justice as ‘extremely modest’: at [51] (Priest and Beach JJA). The applicant in that case had provided false letters purportedly from his treating doctors to the sentencing magistrate in an attempt to achieve a more favourable sentence on earlier dishonesty charges.
Counsel for the applicant pointed to several sentences imposed in the County Court in recent times which took the form of community correction orders. These were said to be better indicators of current sentencing practice, especially when account is taken of the increased utilitarian value of a guilty plea during the current pandemic.[36] In our view, however, each of those cases involved less serious offending. In DPP v Honan,[37] the offender produced false documents to police in an attempt to have charges withdrawn. The offender in DPP v Ceylan[38] made three telephone calls seeking to prevail upon the complainant in a fraud case (against a relative) to withdraw his cooperation in the prosecution. Somewhat similarly, the offender in DPP v Constable[39] sent a letter containing a threat and an inducement, the nature of which are not apparent from the sentencing remarks. Similarly, in DPP v Toner,[40] the offender asked an acquaintance to try to persuade a complainant to withdraw charges against him of contravening a family violence intervention order.
[36]Worboyes [2021] VSCA 169.
[37][2021] VCC 409.
[38][2021] VCC 788.
[39][2020] VCC 1439.
[40][2020] VCC 1326.
In none of those cases did the offender seek to directly mislead the Court to obtain a personal sentencing advantage. In our opinion, the more lenient outcomes in all these cases reflect the less serious nature of the offending, rather than suggesting manifest excess in the present sentence.
Offending such as the present ‘strikes at the heart of the administration of criminal justice, and is designed to erode the confidence that should exist between the Bench and those appearing for sentence’.[41] In our view, the sentence imposed was well within the bounds of the discretion open to the judge. The application for an extension of time should be refused.
[41]Saleem [2014] VSCA 190 [35] (Redlich and Priest JJA).
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