PO v R

[2020] NSWCCA 129

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	PO v R [2020] NSWCCA 129
Hearing dates:	22 May 2020
Decision date:	17 June 2020
Before:	Hoeben CJ at CL at [1]; Hamill J at [45]; Cavanagh J at [46]
Decision:	Leave to appeal granted. The appeal is dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – offence of doing act with intent to pervert the course of justice – attempts to intimidate witnesses in sexual assault proceedings – whether sentence manifestly excessive – whether error in assessment of objective seriousness of offending – whether sentence manifestly excessive – strong subjective case – leave to appeal granted but appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – s 319 Crimes (Sentencing Procedure) Act 1999 (NSW) – s 5 Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Casella v R [2019] NSWCCA 201 Obeid v R [2017] NSWCCA 221 Pham v R [2014] NSWCCA 115 R v Fangaloka [2019] NSWCCA 173 R v Hakim, Court of Criminal Appeal (NSW), 5 September 1996, unrep R v Purtell, Garry Michael [2001] NSWCCA 21 R v Taouk (1992) 65 A Crim R 387 Vandeventer v R [2013] NSWCCA 33
Category:	Principal judgment
Parties:	PO – Applicant Regina – Respondent Crown
Representation:	Counsel: W Terracini SC/P Kondich – Applicant G Newton – Respondent Crown   Solicitors: McAneny Solicitors – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2018/89924
Publication restriction:	Non-publication order
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Macquarie [2019] NSWDC 763 Date of Decision: 29 July 2019 Before: Colefax SC DCJ File Number(s): 2018/89924

JUDGMENT

1. HOEBEN CJ at CL:

Nature of proceedings and sentence

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by his Honour Judge Colefax SC (the sentencing judge) on 29 July 2019 at Campbelltown District Court.

2. The applicant pleaded guilty in the Local Court and was sentenced for one offence of “do act with intent to pervert the course of justice” contrary to s 319 of the Crimes Act 1900 (NSW). The maximum penalty for the offence is 14 years imprisonment. There is no standard non-parole period.

3. The applicant was sentenced to 3 years imprisonment with a non-parole period of 1 year and 6 months (after a finding of special circumstances). The applicant’s sentence reflected a 25 per cent discount for the utilitarian value of his early plea of guilty.

4. The applicant seeks leave to appeal against the sentence on the single ground that the sentence was manifestly excessive.

Factual background and sentence hearing

5. The applicant (aged 62) is the stepfather of SC (aged 52) (“SC”). On 18 September 2017, SC was charged with 18 offences of child sexual assault against HB (aged 17). KM (“KM”) was a witness in that matter. KM is the ex-wife of SC and is HB’s aunt and registered carer. From the age of seven, HB lived with KM and SC. HB and KM subsequently resided together. KM is the owner of a take away food franchise.

6. On Tuesday 6 March 2018, the applicant approached KM at her place of work and handed her a quantity of documents. The applicant said “I have some reading for you... You need to read it very carefully”. KM replied “Yeah, okay”, to which the applicant responded “Think about what you are doing” before walking away from the counter.

7. Amongst the quantity of papers were documents entitled “The truth always comes out” and “Sample Cross-Examination Questions for HB”.

8. In summary, the document entitled “The truth always comes out” contained the following threats:

1. KM should think very carefully before giving false evidence on oath in court and wasting hours of precious court time because when she was caught, she would definitely go to gaol;

2. he (the applicant) had KM’s “alleged Family Court and Court Support fraud” against her “on hold” until SC’s matter was resolved;

3. the DPP would interview KM and HB and determine that there was no chance of a conviction, no bill the matter and have them both charged;

4. if the DPP did no bill the matter, a Magistrate could acquit SC and HB could be charged;

5. he (the applicant) was not providing KM’s proposed cross-examination questions because he was keeping a few surprises up his sleeve;

6. SC’s QC “was going to eat [HB] for breakfast and [KM] for dinner. Every question he asked would be a hidden trap. [HB’s] tears during the interview would be nothing compared to the flood when their QC ripped her apart”;

7. KM had breached her duty of care as a legal guardian and was committing an offence by forcing HB to lie;

8. once KM was charged with perjury, perverting the course of justice and child abuse, he (the applicant) would commence a civil action to recover all of SC’s legal costs;

9. he (the applicant) would go to the media with all the evidence. Reporters would storm KM’s home and work. He was friends with Alan Jones and Pauline Hanson;

10. if KM admitted that it was over, SC would sign a binding agreement not to press charges, plus a request for leniency in case the police decided to charge;

11. KM would need to refund SC’s legal fees which were low now but would skyrocket soon.

9. The document entitled “Sample Cross-Examination Questions for HB” set out 67 pages of proposed questions for HB at trial with a running commentary for KM to consider when reading it. KM showed the documents to HB.

10. On 9 March 2018, KM checked her letterbox for mail. There were two letters addressed to her from the applicant. The first letter, post stamped 7 March 2018, further attacked HB’s allegations. The second, undated letter, was similar in content but attached a “Witness/Cross Examination List”, which included family members not yet aware of the allegations and court matter such as HB’s classmates, friends and teachers. The letter threatened that SC would be calling those witnesses in the trial and they would all be sent a copy of the material “so that they are aware of the truth in advance”. KM had never provided her address to the applicant.

11. On 13 March 2018, KM checked her letterbox for mail and discovered another letter from the applicant addressed to her. The letter, post stamped 9 March 2018, contained a proposed “Media Release” and threatened to identify KM’s place of work and to provide numerous records to the media to enable them to locate and identify KM.

12. On 21 March 2018, police executed a search warrant at the applicant’s residence. The applicant was arrested, cautioned and provided with an occupier’s notice. The applicant admitted to police that he wrote the letters to KM.

Objective seriousness of offending

13. The sentencing judge set out matters which were relevant to his assessment of the objective seriousness of the offence. In making that assessment, his Honour had regard to the following matters:

1. a variety of threats were made to the victim and indirectly to the child victim, including financial and emotional threats and threatening to unleash the media on the victims;

2. there were no threats of physical violence but there were emotional threats to destroy the victim’s business and her life and threats to have her child removed;

3. in one document, there was a “most reprehensible passage” that made reference to the widely published suicide of a young female from bullying. The applicant had invoked that image “knowing that there was a probability that another young girl (HB) might read it”. The sentencing judge described this conduct as “truly wicked” (Sentence judgment [26]-[27]); and

4. the applicant’s threats were to the immediate victims (people who had the right to have their cases heard in court, people who had the right to make complaints and have their complaints acted upon) and also amounted to an attack on the administration of justice (Sentence judgment [28]).

14. His Honour concluded that:

“There is no more reprehensible example of attempting to pervert the course of justice than to intimidate through a variety of means young witnesses in child sexual assault cases” (Sentence judgment [29]).

15. His Honour found that the offending was “slightly above the midrange for an offence of its kind” (Sentence judgment [31]). That finding has not been challenged on appeal.

The assessment of the applicant’s subjective case

16. The sentencing judge accepted that the applicant had no criminal history of any significance and was entitled to the leniency which can be extended to first offenders.

17. His Honour found that the applicant had a long and useful working life. Further, he had been a contributing member of society throughout his employment and had performed charitable works.

18. His Honour accepted that the applicant had a chronic and complex post traumatic stress disorder, persistent depressive disorder, chronic borderline personality disorder and an adult autism spectrum disorder. His Honour accepted that to an extent, the latter condition had some effect on the applicant’s offending behaviour.

19. His Honour accepted that the applicant had expressed remorse but noted that the expression of remorse was to be understood in the context of his psychological condition. His Honour accepted that the applicant’s prospects of re-offending were “very unlikely”.

Imposition of sentence

20. His Honour found that no sentence other than imprisonment was appropriate. His Honour discounted the head sentence to reflect the discount for an early plea of guilty.

21. His Honour made a finding of special circumstances because:

1. this was the applicant’s first time in custody;

2. there was an ongoing need for psychological assistance; and

3. imprisonment would be harsher for the applicant, given his psychological condition.

22. Taking those matters into account, his Honour reduced the ratio of the non-parole period to 50 per cent of the head sentence.

THE APPEAL

The sentence imposed is manifestly excessive

23. The applicant submitted that the sentencing judge had not fully appreciated the strength of his subjective case. The applicant stressed the following matters.

24. He had emigrated to Australia at the age of 6. He came from a strongly religious family with his father being a Presbyterian minister and very strict. Although he did not have any biological children, he had raised three stepchildren with his wife and also helped to care for nine foster children. There had been no previous contact with Community Corrections.

25. Despite suffering a number of setbacks in his life, he had been a valuable member of society until these matters arose. His older brother had died at age 21, having suffering all his life from a debilitating and disfiguring genetic illness. One of his sisters had committed suicide by jumping in front of a train in 1995. Another sister had died in 2017. The applicant blamed himself for their deaths.

26. The applicant was emotionally fragile, having attempted to commit suicide after his sister’s death in 1995 and after he was charged with copyright offences in 1990. The applicant had attempted to commit suicide in 2008 after he was retrenched from work. He had attempted to take his life on 23 March 2018, after being charged with these offences.

27. Despite these matters, the applicant had worked as a computer programmer for the Commonwealth Bank for 30 years. He had actively involved himself in charity and community work, including raising $380,000 for the Make-a-Wish Foundation, and running a seven year campaign that led to the installation of school zone flashing lights at all NSW schools.

28. The applicant submitted that the sentencing judge should have made greater allowance for his psychiatric difficulties and his depressive illness which would make his time in prison more onerous.

29. The applicant submitted that the sentence imposed on him was manifestly excessive because it was to be served by way of fulltime custody. The applicant submitted that his Honour had failed to give reasons for why he had determined that the sentence should be served in that way. The applicant submitted that there was no analysis, other than the bare statement that “no sentence other than a period of imprisonment is appropriate” (Sentence judgment [41]).

30. The applicant submitted that a sentence of 3 years, to be served by way of fulltime custody, was manifestly excessive for the following reasons:

1. a sentence of 3 years imprisonment after a 25 per cent discount for a plea of guilty was an impermissibly severe one;

2. little or no weight should have been given to the application of personal deterrence arising from his convictions in 1990 and 1991 for computer offences. These offences took place 29 years before the present offences;

3. while the applicant’s subjective case cannot obscure the seriousness of the offending, it should not be underestimated. The applicant submitted that there were a number of subjective matters which his Honour had to bear in mind and full weight should have been given to them:

4. •   he was presently aged 62 years and 7 months;

5. •   he had a very limited criminal history;

6. •   he had demonstrated good character in the form of voluntary assistance to numerous charities;

7. •   he had attempted on numerous occasions to take his own life and had been diagnosed as suffering from a number of serious disorders, one of which was found at least in part to be causally related to the criminality, i.e. his autism; and

8. •   he had expressed profound remorse.

31. While accepting the principles of individual justice, the applicant relied upon a schedule of cases which he submitted disclosed that the sentence imposed on him was harsh and should be properly characterised as unreasonable or plainly unjust.

Consideration

32. The principles applicable to a ground of appeal based on manifest excess are clear. In Obeid v R [2017] NSWCCA 221 at [443] the Court (Bathurst CJ, Leeming JA, R A Hulme, Hamill and N Adams JJ) said:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles:

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

33. In Casella v R [2019] NSWCCA 201 Bathurst CJ (with whom Beech-Jones and N Adams JJ agreed) stated at [81]:

“In considering the question [as to whether a sentence is manifestly excessive] in the present case it is necessary to consider first, whether it was unreasonable or plainly unjust to impose a term of imprisonment, second, whether the term of imprisonment itself was unreasonable or plainly unjust, and third, if not, whether the decision to impose a full time custodial sentence resulted in a manifestly excessive penalty.”

34. The thrust of the applicant’s submission in relation to manifest excess is his complaint about the way his sentence was to be served, i.e. by way of fulltime custody. The applicant complained that there was, in effect, a failure to give adequate reasons for that part of the sentence.

35. That submission should not be accepted. The sentencing judge comprehensively set out the facts and circumstances on which he relied, including his assessment of both the objective seriousness of the offence and the applicant’s subjective case. In compliance with s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) his Honour determined that a period of imprisonment was required. His Honour then determined the length of the sentence which precluded the possibility that it could be served by way of an Intensive Correction Order (ICO). This was consistent with the three step approach required before an ICO can be imposed, although in the present case the “third step” had no application because the length of the sentence exceeded two years.

36. The three step approach was referred to and approved in R v Fangaloka [2019] NSWCCA 173 where Basten JA (with whom Johnson and Price JJ agreed) said at [44]-[45]:

“44   Being characterised as a form of custodial penalty, the making of an ICO requires the sentencing judge to follow a three stage process in accordance with the principles stated in R v Zamagias and Douar v The Queen with respect to periodic detention. The first step is to determine, pursuant to s 5 of the Sentencing Act, that no penalty other than imprisonment is appropriate. The sentencing judge made such a finding in the present case. The second step, as explained by Johnson J in Douar, is to determine the length of the sentence. ...

45   The third, and critical stage for present purposes, was to determine whether the sentence should be served by way of an ICO. ...”

37. The applicant also referred to a table of cases which were said to demonstrate that the sentence imposed on him was harsh and excessive. For such an approach to be successful, an applicant has to establish that the difference between the sentence imposed and sentences in other cases was such that it may be concluded that there must have been some misapplication of principle or where the sentence imposed was so far outside the range of sentences available, that there must have been error. Consistency in sentencing is important but “the consistency that is sought is consistency in the application of relevantly equal principles not numerical equivalence”: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]. The plurality (French CJ, Hayne, Kiefel, Bell and Gageler JJ) went on to say:

“41   ... in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. ...”

38. In Pham v R [2014] NSWCCA 115 Hoeben CJ at CL (Adams and Hall JJ agreeing) at [57] said:

“57   There are, however, considerable limitations in relying upon a series of individual cases to establish some kind of range of sentences. In that regard, the observations recently made by Adamson J (with whom Simpson and Davies JJ agreed) in Dang v R [2014] NSWCCA 47 are apposite:

"55    Care must be taken in drawing direct comparisons between sentences passed, those to be passed and those which are, or have been, the subject of appeal: see generally, Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520 at [53]-[56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Sentencing requires the exercise of discretion. The factors that are germane to the exercise of the discretion include deterrence, both general and specific, rehabilitation and punishment. The exercise of the discretion requires consideration of objective circumstances (the seriousness of the offending conduct) as well as subjective circumstances pertinent to the offender. The number of factors to be taken into account as either mitigating or aggravating under s 21A of the Crimes (Sentencing Procedure) Act 1999 provides an indication of the complexity of the exercise and the concomitant difficulty of identifying “comparable cases”. Although it is orthodox for such cases to be identified for the benefit of the sentencing judge, they can be no more than a guide.””

39. In Vandeventer v R [2013] NSWCCA 33 Adamson J observed (McClellan CJ at CL and Rothman J agreeing) at [45]:

“45   One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.”

40. The applicant relied upon 16 decisions of this Court. The absence of any analytical approach did not assist in identifying a unifying principle and tended to obscure those matters which render many cases entirely inappropriate for comparison with the index offence. As noted in R v Purtell, Garry Michael [2001] NSWCCA 21, the maximum penalty for the offence of perverting the course of justice recognised the importance of protecting the integrity of the criminal justice system. The offence has been described as striking at the heart of the judicial system (R v Hakim, Court of Criminal Appeal (NSW), 5 September 1996, unrep; see also R v Taouk (1992) 65 A Crim R 387 at 392).

41. The applicant’s offending in this case is a very serious example of the offence of perverting the course of justice. It involved a number of criminal acts carried out on separate days. It is clear from the material described in the factual background that the offending involved and required very considerable preparation and planning. Those acts and their cumulative effect were designed to derail the prosecution of very serious criminal proceedings and defeat the proper administration of justice. The applicant’s criminal conduct targeted both KM and HB, the complainant in the proceedings.

42. The sentencing judge assessed the offence to be “slightly above the midrange”, a finding that is not challenged on appeal. The sentencing judge described the applicant’s conduct as “truly disgraceful” and warranting a greater term of imprisonment. It was only because of his Honour’s sympathetic approach to the applicant’s exceptional subjective circumstances which led to a relatively favourable outcome for the applicant. For example, the sentencing judge’s reduction of the non-parole period to 50 per cent of the head sentence was generous given his Honour’s finding as to the objectively serious features of the offending.

43. In all the circumstances, the sentence imposed was within the range available to the sentencing judge and no error has been identified. The ground of appeal has not been made out.

44. Accordingly, the orders which I propose are:

1. Leave to appeal be granted.

2. The appeal is dismissed.

45. HAMILL J: I agree with Hoeben CJ at CL.

46. CAVANAGH J: I agree with Hoeben CJ at CL.

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Amendments

17 June 2020 - Anonymisation

18 June 2020 - anonymisation of parties

Decision last updated: 18 June 2020