R v Challis

[2022] NSWDC 617

District Court

New South Wales

Medium Neutral Citation:

R v Challis [2022] NSWDC 617

Hearing dates:

6 March 2020

Date of orders:

9 December 2022

Decision date:

09 December 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Term of imprisonment to be served by Intensive Correction Order. For orders see [89].

Catchwords:

Do act/make omission intending to pervert the course of justice; fourteen year delay in sentencing.

Legislation Cited:

Bail Act 1978

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Disability Act 2006 (Vic)

Cases Cited:

Blanco v R (1999) 106 A Crim R 303; [1999] NSWCCA 121

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

R v Fangaloka [2019] NSWCCA 173

R v Mahoney [2004] NSWCCA 138

R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264

R v Todd [1982] NSWLR 517

Taylor v R [2007] NSWCCA 99

Veen v R (No. 2) (1998) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Darren Pater Challis (Offender)

Representation:

Solicitors:
S Makin (Crown)
T Johnson & M Betts (Offender)

File Number(s):

2008/69467

Publication restriction:

Nil.

REMARKS ON SENTENCE

1. The offender has pleaded guilty to a charge of do act/make omission intending in any way to pervert the course of justice pursuant to s319 of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment and there is no Standard Non-Parole Period prescribed.

2. The offence occurred between 7 May 2008 and 23 June 2008. There are two further charges that are the subject of a certificate pursuant to s166 of the Criminal Procedure Act 1986, namely:

Sequence 3 - Fail to appear in accordance with bail undertaking Sequence 5 - Wilfully hinder/obstruct officer in execution of duty.

3. Those offences carry maximum penalties of 3 years imprisonment and 5 years imprisonment respectively.

4. The offence pursuant to s319 of the Crimes Act 1900, pervert the course of justice, was committed whilst the offender was on bail. The offence of resist police, Sequence 5, occurred whilst the offender was on parole.

5. The offender was arrested in respect of the offence of pervert the course of justice on 3 October 2008. Having been granted bail, he failed to appear, and that is the offence in Sequence 3 on the s166 Certificate. Following the sentence hearing the sentence was adjourned to 20 March 2020 when the offender failed to appear and a warrant was issued for his arrest. He was arrested on 28 November 2022 and has been custody since that time.

The sentence hearing

6. The sentence hearing took place on 6 March 2020. The Crown Sentence Summary became Exhibit A. It included a Statement of Agreed Facts, which may be summarised as follows.

7. On 21 January 2007, the offender was charged with an offence of goods in custody in relation to a stolen pushbike. On his arrest, the offender provided police with a version of receiving the bike as a birthday gift from a friend named Alice. He pleaded not guilty to the charge and was represented by Legal Aid.

8. In early 2008, the offender entered into a relationship with Nicole Parrish. On or around 8 May 2008, the offender and Ms Parrish together attended a legal conference with the offender's Legal Aid lawyer. The offender introduced Parrish to that lawyer under the false name of "Alison", knowing she was going to hold herself out under that false name and falsely claim that she had gifted the pushbike, the subject of the goods in custody charge, to the offender.

9. Parrish executed a document under the false name of Alison Kathleen Lane, in which she declared herself to be the person known as "Alice" who had given the pushbike to the offender as a birthday gift. In that statement she provided an explanation of the history of the bike, and the statement was witnessed by the Legal Aid lawyer. It was headed "Affidavit".

10. The offender and Ms Parrish married on 14 June 2008. The offender was aware of the precise terms of the statement made by Parrish and that she intended to give evidence in court on his behalf in those false terms, and that it would be to his direct benefit. The hearing took place on 23 June 2008 at the Downing Centre Local Court and Parrish gave evidence in accordance with her false statement, and the charge against the offender was dismissed. In his reasons, the presiding Magistrate referred to the evidence of Parrish as contributing to his decision to dismiss the charge.

11. The offender had sat through the hearing, including the evidence given by his wife.

12. Following the hearing police approached Ms Parrish and her true identity was revealed. She was then charged with an offence pursuant to s319 of the Crimes Act 1900 and released to bail.

13. On 3 October 2008, the offender was arrested when he attended Kings Cross Police Station with Ms Parrish for the purpose of her reporting on bail. On being told that he was arrested, the offender replied, "I'm out of here", and ran out of the police station and eventually into a cafe on Llankelly Place. He was there apprehended by police, when he raised his arms and clenched his fists, saying "You can't arrest me". That is the conduct the subject of Sequence 5, wilfully obstruct/resist police in execution of duty pursuant to s58 of the Crimes Act 1900 on the s166 Certificate.

14. Following his arrest, the offender was released to bail, however, he failed to appear in answer to his bail on 4 December 2008. That is the conduct behind Sequence 3, failure to appear, pursuant to s 51(1) of the Bail Act 1978.

15. The offender was arrested in Victoria on 27 June 2019 and extradited to New South Wales on 29 June 2019. His previous parole was revoked on 22 May 2019 and it is common ground that he spent 25 days in custody in respect of this matter only, between 18 October 2019 and 12 November 2019 and that he has been in custody since his arrest on 28 November 2022.

16. The Agreed Facts annexed as Annexure A the false document signed by the co-offender under the name of Alison Kathleen Lane, and headed "Affidavit". It was dated 8 May 2008 and bore the co-offender's signature and that of the offender's Legal Aid lawyer.

17. Exhibit A also included the criminal antecedents of the offender. He was born on 24 January 1983 and is now 39 years of age. His criminal history commenced in 2001 and included offences of dishonesty (being carried in a conveyance taken without consent of owner and larceny), and violence (offences of common assault) for which he was initially dealt with by way of bonds pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). In 2002, the offender was sentenced to imprisonment for 4 months on a charge of common assault and subsequently sentenced to imprisonment for 3 years with a non-parole period of 1 year and 6 months on an offence of aggravated robbery.

18. In 2004, the offender was convicted of an offence of demand property with menaces with intent to steal and imprisoned for 3 years with a non-parole period of 1 year and 6 months.

19. In 2006 there were further offences including affray and common assault, for which he served short periods of imprisonment. In 2007 there was a further offence of common assault for which he was imprisoned for 256 days. In 2008 there were further offences of common assault and shop stealing, for which the offender was sentenced to short periods of imprisonment. In October 2019 he was sentenced in respect of offences of common assault and affray which occurred in June 2008, for a period of imprisonment of 3 months on each charge, to be served concurrently.

20. Between 2008 and 2019, the offender had lived in Victoria. Exhibit A included the Victoria Police criminal history report, which itself contained numerous offences from 2012 until 2019. They included numerous offences for dishonesty (shop theft and deal with property suspected proceeds of crime), as well as violence (unlawful assault, recklessly cause injury). It constituted an unenviable record of criminal conduct, however, it established that between 2008 and 2012 the offender did not engage in criminal conduct.

21. Exhibit A also contained the New South Wales Department of Corrective Services custodial record, it was updated today as Exhibit B on sentence, which inter alia, demonstrated that between 23 June 2008 and 22 August 2008 the offender had been in custody in New South Wales until he was released on parole. This fact is relevant to the question of delay in sentencing referred to below.

22. Exhibit A included the order revoking the offender's parole dated 22 May 2019, together with the remarks on sentence of the sentencing judge who sentenced Ms Parrish, the co-offender, together with her criminal antecedents.   These are relevant to the issue of parity in sentencing also referred to below.

The offender's documentary evidence

23. The offender tendered the following documents. Exhibit 1 was a report of Dr Patrick Sheehan, forensic psychologist, dated 29 January 2020. Under the heading "Family history", Dr Sheehan took a history that the offender had been very sick during his infancy and although well cared for by his mother, had an unhappy home life with a step-father who became highly controlling and physically abusive. He was diagnosed with a mild intellectual disability and exhibited behavioural problems from a young age, secondary to Attention Deficit Hyperactivity Disorder ("ADHD"), and Oppositional Defiant Disorder ("ODD") and Conduct Disorder. Whilst on bail for the current index offence, he was bailed to his mother's home in Westmead and had reconnected with her. Dr Sheehan noted that the offender reported a negligible work history and had been in receipt of a disability support pension on account of his mild intellectual disability. The offender had told Dr Sheehan that his lifestyle was somewhat stabilised over the past five years in Victoria through him obtaining a disability and justice case manager and NDIS funding. He also expressed an ambition to pursue a trade in motor mechanics upon his return to Melbourne.

24. Dr Sheehan noted a long history of problems with substance abuse. The offender began smoking cannabis at age 15 and at age 18 he began smoking heroin. He developed a dependence and moved to injecting the drug after three months and has remained opiate dependent throughout most of his life. Committing crimes to support his habit has been a consistent feature of his life over the years, and he has overdosed on a number of occasions. The offender had never completed any rehabilitation programs. He had commenced a methadone and suboxone program in the past, but had not persisted. In recent years he had combined the antihistamine Doxylamine with heroin to increase its effect. Since his extradition to New South Wales in June 2019, he had smoked cannabis regularly, but otherwise remained abstinent from substance abuse since that time. Dr Sheehan was of the opinion that the offender's polysubstance use history would meet the diagnostic threshold for Substance Use Disorder.

25. In respect of the perjury offence, the offender had maintained that the pushbike had been rightly his and that this in a sense had justified the offence to his way of thinking at the time.

26. Dr Sheehan noted the offender's significant criminal history in New South Wales and Victoria, with convictions commencing from the age of 18 years, as set out above. Dr Sheehan opined as follows:

"22 Mr Challis has faced serious impediments to positive community adjustment, with mild intellectual impairment, ADHD and co-morbid severe behavioural disturbance in childhood. He has been opiate dependent from his late teens and this has further aggravated his maladjustment, creating impetus for persistent criminal behaviour throughout adulthood, in order to sustain his addiction. His combination of disorders generate impulsivity, aggressiveness, rule violation, and impaired appraisal of his behaviour and available options. His current offences are best viewed as part of a broader and entrenched pattern of mostly opportunistic criminal behaviour that Mr Challis has maintained for many years."

27. Dr Sheehan further opined that the provision of a disability justice manager and NDIS funded caseworker in Victoria has the potential to play a key role in the offender's rehabilitation, should he abstain from drug use.

28. Exhibit 2 was a Client Overview Report of Gaetano Ravida prepared for the offender's appearance in the Melbourne Magistrate's Court in September 2017. The report set out the offender's level of disability and developmental history, consonant with the report of Dr Sheehan. The author made recommendations which were relevant to the offender's sentencing in 2017.

29. Exhibit 3 was a statement of intellectual disability under the hand of Mr David Pearce, assistant manager, Disability Justice, Department of Health and Human Services Victoria. The document certifies that the offender has an intellectual disability within the meaning of the Disability Act 2006 (Vic) and that the offender exhibits:

• "Significant sub-average general intellectual functioning; and

• Significant deficits in adaptive behaviour;

• Each of which became manifest before the age of 18 years."

30. Exhibit 4 was a letter from the Department of Health and Human Services dated 8 January 2020 confirming the tenancy of the offender for premises at Coburg, Victoria, for which he was in arrears up until 11 January 2020 in the sum of $2,996.00, the rent having been paid up until 12 September 2019.

31. Exhibit 5 was a letter from Ms L Gough, disability justice co-ordinator, from the same department dated 20 February 2020 confirming that upon the offender's return to Victoria, she could only continue to work with him if he is on an undertaking or correction's order with a justice plan attached. She further stated that if the matters in New South Wales proceed longer than March, she will be directed "to close his case". She also confirmed that the department was currently preparing to evict the offender's brother for non-payment of rent.

32. Exhibit 6 is a letter to the court from the offender's mother, Ms Lynette Challis, dated 1 March 2020. Ms Challis recorded that since staying with her on bail she was proud of the offender's attitude and his regret on not appearing in court originally to face the consequences of his actions. She also described her regret and guilt, that because of her choices, the offender was forced to leave home and that she was of the opinion that he had always been "a sweet, caring and loving son".

The offender's oral evidence

33. The offender gave oral evidence in which he outlined the rental arrangements for his housing commission apartment in Coburg. His brother was not paying the rent and if it was not paid he was concerned that they would lose the apartment. His partner was also staying in the apartment and paying some rent.

34. The offender gave evidence that he had told Dr Sheehan the truth in recording his history and in disclosing his longstanding issue with heroin. He had not used heroin for 10 months since his extradition to New South Wales and it was a condition of his bail that he not use prohibited drugs.

35. The offender gave evidence that from 2008 when he moved to Victoria, for the first three or four years he did not have trouble with the police. He had left New South Wales with his co-offender, however, their relationship broke down, following which he started using heroin again. This led him to reoffend to support his heroin addiction and accounted for his criminal history since 2012 in Victoria.

36. The offender gave evidence that he understood the seriousness of the charge for which he was being sentenced. He described it as stupid and that he understood that giving truthful evidence in court was fundamental to the administration of justice. When asked why he resisted his arrest on 10 August 2008, he gave evidence that he ran because the police wanted to arrest him for the perjury offence. Prior to that, he did not know about the impending charges when he arrived at the police station with his partner.

37. When asked what would happen if he was sentenced with an alternative to full-time custody, the offender gave evidence that he would ask that any non­ custodial sentence be transferred to Melbourne. He gave further evidence that he had a motor mechanic's certificate and will seek work in Melbourne upon his return there, consistent with what he had told Dr Sheehan.

38. The offender confirmed that he was not using drugs anymore and that he was sorry for what he had done. He described himself at the time of the offending as being "young and stupid", and that he was more mature now. The offender expressed remorse, saying that he was sorry for all the trouble that he had caused back then.

39. In cross-examination, when asked whether he understood why he was charged with perjury, he said that he did get given a pushbike for his birthday, however, he could not remember the name of the person who gave it to him. The co-offender told him that she would "do it", namely make a false statement and give false evidence, and his role involved letting her lie and not standing up in court and telling the court that it was a lie. The offender conceded that by introducing his co-offender to the Legal Aid solicitor, he knew what she was doing. He explained his action by him being "young, stupid and on drugs".

40. The offender confirmed that he had not consumed heroin for a period of 10 months. It was put to him there was a possibility that he would relapse into heroin abuse, which he denied. He said that he had been recently offered heroin but had refused it. He had not undertaken a methadone program and he did not expect his mother's help. The offender gave further evidence that he had been working with Ms Gough for the last four to five years and that she had assisted him with his liaison with the Housing Commission and talking out problems under his justice plan in Victoria.

The Crown submissions

41. The Crown relied on a written outline of submissions which set out well established sentencing principles. The submissions highlighted that the correct approach to sentencing in respect of offences pursuant to s 319 of the Crimes Act 1900 must reflect that offences of perverting the course of justice are offences of the most serious kind and that they strike at the very heart of the justice system. The high maximum penalty of 14 years imprisonment recognises the importance of protecting the integrity of the criminal justice system. General deterrence is therefore important in the sentencing process and extraordinary circumstances will be required before a custodial sentence is not imposed. A significant factor to be taken into account is the effect that the offending has had on the relevant proceedings that were perverted.

42. The Crown submitted that the offending here fell within the mid-range of seriousness for an offence pursuant to s 319. The offender played a central role by introducing the co-offender to his lawyer. Further, he knew that the co-offender was misleading the court and that he would benefit from that false evidence, which directly resulted in the dismissal of the charge against him, for which he would otherwise have been convicted.

43. The Crown conceded a 25% utilitarian discount on sentence in respect of the offender's plea of guilty.

44. An aggravating factor here, pursuant to s 21A(2)(d), was that the offence was committed while the offender was on conditional liberty, namely, bail. Further, the offender was on parole at the time of the commission of the offence of wilfully obstruct/resist officer in execution of duty.

45. The Crown noted that the offender had been convicted of a number of offences in Victoria between 2010 and 2019. Whilst those matters could not be taken into account for the purpose of imposing a more severe sentence, they may be considered for the purpose of deciding whether the offender is deserving of leniency and also relevant to his remorse and prospects of rehabilitation.

41. The Crown submitted that the offender's drug addiction at the time of the offending did not mitigate the offence.

42. In respect of principles of parity, the Crown submitted that the co-offender had entered a plea of guilty to an offence pursuant to s 327 of the Crimes Act 1900, make statement in connection with judicial proceedings on oath knowing the statement to be false. She was sentenced in the District Court to two years imprisonment which was suspended pursuant to s 12 of the CSPA. The co-offender had a minimal history of convictions, unlike the offender. The Crown submitted that the objective criminality and moral culpability of the offender was not substantially less than that of the co-offender.

43. In his oral submissions, the Crown submitted that the delay in sentencing here lay at the feet of the offender, who had moved interstate and escaped detection in respect of the index offence. The Crown submitted that the s 5 threshold had been crossed and a full-time custodial sentence was appropriate, given the objective seriousness of the offending lying within the mid-range for an offence pursuant to s 319.

44. The Crown rehearsed its submissions in respect of the principle of parity. There were different charges here and the subjective circumstances of the co-offender were very different from that of the offender. Given the joint nature of the undertaking by which the offender facilitated the co-offender to mislead the court by giving false evidence, their level of culpability was parallel. The Crown contended that some parity had to be applied to the sentencing, although it was a difficult exercise, particularly having regard to the prospects of this offender re-offending.

The offender's submissions

50. The solicitor for the offender also relied on a thorough and detailed outline of written submissions. The offender recognised that the preservation of the integrity of the criminal justice system is critical in sentencing for an offence which undermines its administration, and that the offence of perverting the course of justice was an offence of the most serious kind – Taylor v R [2007] NSWCCA 99 at [23]. The offender referred to authorities that established that such offences strike at the heart of the justice system and must be severely punished, and therefore strongly deterrent sentences are required (authorities and citations omitted).

51. The offender submitted that in evaluating the objective seriousness of the offender here, "the offender did not actively participate in the evidence mounted in his defence, but allowed it and thus benefited from the evidence given by his co-offender, as it resulted in the dismissal of the charge". The offender, however, was aware of the content of the co-offender's false "affidavit" and was present when she gave false evidence. It was submitted that the offence would be characterised as below mid-range of objective seriousness as the offender "assumed a passive role by allowing the co-offender to make a false statement".

52. The offender submitted that the objective seriousness of the offence of resist police in execution of duty fell towards the low end of objective seriousness for this type of offence.

53. It was submitted that an aggravating feature of the offending was that it was planned (s 21A(2)(n)). However, the following mitigating features were present pursuant to s 21A (3):

"(i) The offender has prospects of rehabilitation (albeit guarded) - s 21A(3)(h).

The remorse shown by the offender for the offence - s 21A(3)(i)

The plea of guilty by the offender - s 21A(3)(k)."

The offender's plea of guilty brought a 25% utilitarian discount on sentence.

54. The solicitor for the offender noted that in discussing the offence with Dr Sheehan, the offender had acknowledged the offences but maintained that the bike, the subject of the charge, had been rightly his, notwithstanding the falsity of the evidence given in his case.

55. The offender's subjective case was comprehensively detailed in the report of Dr Sheehan, together with the Client Overview Report of Gaetano Rivida and the Statement of Intellectual Disability. That evidence established that the offender experienced significant behavioural issues and had been the subject of multiple childhood diagnoses, including ADHD, ODD, Conduct Disorder, paranoia and major depression. Further, he has a diagnosis of mild intellectual impairment. The offender relied on Dr Sheehan's opinion that:

"His combination of disorders generate impulsivity, aggressiveness, rule violation and impaired appraisal of his behaviour and available options."

56. The offender submitted that his drug use at the time of the offending was a relevant factor to be taken into account in the assessment of objective criminality. His opiate use had played a dominant role in his general dysfunction over the course of his life, thereby affecting his capacity to exercise prudent judgment. His conduct in perverting the course of justice was partly attributable to his poor impulse control and inability to emotionally regulate his actions. Further, his mild intellectual impairment had a significant impact on his intellectual functioning and adaptive behaviour. This would reduce the offender's moral culpability and diminish the importance of general deterrence, retribution and denunciation in accordance with authorities including DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

57. Further, it was submitted that the offender's impaired intellectual function made him potentially vulnerable in custody and bears upon his moral culpability for his offending conduct.

58. It was submitted that the offender's willingness to accept responsibility for his offending behaviour and his capacity to observe the harm to victims of his crime was positive in assessing his prospects of rehabilitation. Also, he had engaged with health services to treat and manage his schizophrenia which demonstrated an ability to engage with supervisory agencies.

59. Since his arrest the offender had served an aggregate fixed term of three months for unrelated offences, together with a balance of parole of three months and 20 days. He had spent a total of 25 days in custody solely referrable to these offences at the time of the sentence hearing on 6 March 2020. It was submitted that that period of custody together with his present custody should be taken into account in the commencement of any term of imprisonment.

60. The offender submitted that considerations of parity arise in the sentencing exercise, given the nexus in the conduct of this offender with the co-offender. It was submitted that it was open to conclude, notwithstanding that the offences for which the co-offender were dealt with are different, that this offender's culpability is less than that of the co-offender. It was further conceded that the offender's criminal record is more significant than that of the co-offender.

61. It was submitted that the offender does not present a serious risk to the community and this is not a case where community safety is best achieved through incarceration. Rather, the punitive and deterrent aspects of the sentencing exercise may be facilitated through a community based disposition.

62. It was submitted that the s 5 threshold was not crossed and therefore the court would consider a Community Corrections Order, given the age of the matter and the current support offered to the offender in Victoria. If the court held that the threshold was crossed, and the only appropriate sentence was one of imprisonment, it was submitted that the court would impose an Intensive Corrections Order as an alternative to full-time imprisonment. It was submitted that the offender had a need for treatment in relation to his drug issues, which was related to his prospects of rehabilitation.

63. In her oral submissions, the solicitor for the offender conceded that the offence was very serious, requiring emphasis on both general deterrence and specific deterrence. The issue was whether the s 5 threshold had been crossed.

64. It was submitted that the court would take into account the mild intellectual disability of the offender and the fact that he had demonstrated insight into his offending and engaged with relevant agencies in Victoria. His impairment meant that the importance of general deterrence in sentencing was reduced, as was his moral culpability for his offending.

65. The offender submitted that his criminality was more passive than that of the co-offender and was a lesser role, resulting in different charges.

66. Whilst the offender had not engaged with rehabilitation services in New South Wales, since being granted bail he had been living a simple life and avoiding the city.

67. The delay in sentencing the offender should be of benefit to him. Not only had he been in trouble with the authorities in Victoria since 2010, the custodial record demonstrated that he was in custody in New South Wales from 23 June 2008 to 22 August 2008, which followed the offending.   He was not arrested until 3 October 2008.

68. It was submitted that if the court were minded to impose a custodial sentence, the offender's prospects of rehabilitation were in the community interest and therefore issues of community safety could be given paramountcy in the sentencing process.

69. It was submitted that the offender's remorse for his offending was genuine, that his prospects of rehabilitation were good, given that he had ceased his use of heroin, and therefore the offender urged a community based sentence be imposed rather than full-time custody.

Determination

70. Section 3A of the CSPA sets out the purposes of sentencing as follows:

"3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community."

71. In evaluating the objective seriousness of the offending here, the court must have regard to the role played by the offender so as to offend against s 319 of the Crimes Act. I accept the Crown's submission that the offender's role was central. He introduced the co-offender to his lawyer knowing that she would make a statement that was false, that she would give false evidence in accordance with that statement in court, and that he would benefit from that false evidence. Further, he was present in court whilst the co-offender gave false evidence and he benefitted from it in that the charge against him was dismissed, whereas in the absence of that evidence, he would otherwise have been convicted. In so finding, I reject the submission made on behalf of the offender that he did not actively participate in the evidence mounted in his defence, but rather took a passive role.

72. I therefore find that the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 319 of the Crimes Act, however, it was towards the bottom of that mid-range.

73. I find the following aggravating factors pursuant to s 21A of the CSPA:

1. (2)(d) The offender had prior to 2008 a significant criminal history which commenced in 2001 as an adult as outlined in [17] to [19] above. His criminal antecedents included offences for dishonesty and violence, for which he had been sentenced by way of imprisonment on a number of occasions.

2. (2)(j) The offence was committed whilst the offender was on conditional liberty, namely, bail.

3. (2)(n) The offence involved some planning on the part of the offender so as to introduce the co-offender to his Legal Aid lawyer with the purpose of making a false statement and giving false evidence before the court.

74. I find the following mitigating factors pursuant to s 21A(3):

1. (3)(h) the offender has some prospects of rehabilitation, given that he has been abstinent from drug abuse for a period of time since his arrest.

2. (3)(i) the offender has demonstrated remorse for the offence and accepted responsibility for his criminal conduct.

3. (3)(k) the offender has entered a plea of guilty and is entitled to a 25% utilitarian discount on sentence.

75. I do not find that the offender's abuse of prohibited drugs at the time of the offending mitigated his criminal conduct.

76. I have taken into account the subjective features of the offender's case. He was diagnosed at a young age with a mild intellectual disability and exhibited behavioural problems secondary to ADHD, ODD and a Conduct Disorder. He also had a long history of problems with substance abuse, beginning to smoke cannabis at age 15 and heroin at age 18 years. That led to a heroin dependency and a lifestyle of committing crimes to support his habit. Whilst he was drug free for a period of time following 2008 in Victoria, he relapsed following the breakdown of his marriage and from 2012 his criminal lifestyle was reactivated to support his habit. He went cold turkey upon his arrest and incarceration in 2019, and has remained abstinent from heroin abuse whilst he has been on bail.

77. The offender has been on a Disability Support Pension and has no meaningful work history. His expressed ambition to pursue a trade in motor mechanics upon his return to Melbourne, must be viewed as somewhat optimistic. However, it is no small thing to overcome a long-standing drug addiction and I was impressed by the offender's evidence as to his efforts to remain abstinent to date.

78. I have taken into account the maximum penalty of 14 years imprisonment as a guidepost in the sentencing process. Such a high maximum penalty does recognise the importance of protecting the integrity of the criminal justice system, as offences pursuant to s 319 of the Crimes Act 1900 strike at the very heart of that system. General deterrence is therefore important in sentencing for offences of perverting the course of justice and extraordinary circumstances will be required before a custodial sentence is not imposed - see Taylor v R, supra.

79. I accept, however, the offender does have a mild intellectual impairment and had been diagnosed in childhood with ADHD, ODD, Conduct Disorder, and has suffered paranoia and major depression throughout his adult life. I accept the submission made on behalf of the offender that his criminal conduct for the index offence was partly attributable to his poor impulse control and inability to emotionally regulate his actions. This must reduce the offender's moral culpability and diminish the importance of general deterrence in the sentencing process in accordance with DPP (Cth) v De La Rosa, supra.

80. Specific deterrence also has a role to play in the sentencing process, however, that also has a reduced role to play here. In any event, I accept the offender's remorse for his offending as genuine.

81. The offender is entitled to a utilitarian discount on sentence of 25% for his early plea of guilty. His prospects of rehabilitation must be guarded, given that he has never had the benefit of treatment interventions for his drug abuse. The prospect of him relapsing yet again carries with it a substantial risk that he will re-offend as he has done in the past.

82. The principle of parity in sentencing demands that like cases are treated alike, and different cases differently. Here, the offender is being sentenced under a different charge from his co-offender. I do not accept that his role was less than hers. Further, he has an extensive criminal record which was absent as a feature of the sentencing of his co-offender and there are significant subjective matters to be taken into account. She, on the other hand, was found to be a vulnerable personality who became dependent on others, and in particular, at the time of this offending, on the offender. When sentenced in 2012, the co-offender was sentenced to a term of imprisonment of 2 years which was suspended pursuant to s 12 of the CSPA. That sentencing option is no longer available in this state. I therefore find that the application of parity principles have a diminished role to play in the sentencing exercise here.

83. There has now been considerable delay between the offending which occurred in 2008 and sentence. This may benefit an offender, however, each case depends on its own circumstances. In R v Todd [1982] NSWLR 517 at 519, Street CJ said:

"Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at time this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

84. It is true that here the delay was caused by the offender removing himself from the jurisdiction. However, for the first three or four years in Victoria his rehabilitation progressed and he did not come to the attention of the authorities. He then relapsed into drug addiction, and his criminal activities recommenced in 2012. He was, however, incarcerated in New South Wales for some months following the offence and could have been dealt with had the authorities acted promptly. Similarly, although he came to the attention of the authorities in Victoria on numerous occasions between 2012 and 2019, he was not extradited until his arrest in October 2019. Since then he has made some progress with his rehabilitation, both whilst in custody and on bail awaiting sentence. It is in the public interest that those who are suspected of serious crime be brought to justice quickly, particularly where there is a strong case - see Blanco v R (1999) 106 A Crim R 303; [1999] NSWCCA 121 at [17]. Further, the offender has been left in a state of suspense and uncertainty awaiting sentence.

85. The offender's antecedent criminal history is significant. I take into account what the High Court said in Veen v R (No. 2) (1998) 164 CLR 465; [1988] HCA 14at 477:

"The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."

This offender falls in the latter category, and his criminal history does not entitle him to any leniency on sentence.

86. This is a case in which there are extraordinary and compelling subjective factors, including the long delay in prosecuting the offence and the diminished importance of general and specific deterrence, given the offender's impaired intellectual capacity. Ordinarily a full-time custodial sentence for the offence of perjury is required, particularly in circumstances such as the present when the offender was seeking to manipulate the criminal justice system to his own benefit and avoid punishment for a crime he had committed - see R v Mahoney [2004] NSWCCA 138.

86. I am satisfied that the s 5 threshold has been crossed and after applying a 25% discount an appropriate penalty would be 18 months imprisonment. I have also considered whether that sentence should be served by way of an Intensive Correction Order. Pursuant to s 66(1) of the CSPA, community safety is of paramount importance in considering such an order. In R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264, Harrison J said at [84]:

"84 In determining whether an ICO should be imposed, s 66(1) makes 'community safety' the paramount consideration. The concept of 'community safety' as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender's risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community."

88. I am mindful that a purposive approach must be utilised in determining whether a sentence should be served by way of an Intensive Correction Order, in accordance with purposes of sentencing set out ins 3A of the CSPA above - R v Fangaloka [2019] NSWCCA 173. I am satisfied that I have sufficient evidence to justify making such order without the need for a further assessment report (s 17D(1A) of the CSPA). I am also satisfied that any concern as to community safety can be met by appropriate conditions attached to such Intensive Correction Order, and that given the diminished importance of general deterrence and denunciation as outlined above, together with the delay in sentencing, it is appropriate that the offender serve his sentence by way of an Intensive Correction Order. I have also taken into account the fact that the offender has already spent 25 days in custody, his custody since 28 November 2022 and that he served the balance of his previous parole.

Orders

89. I make the following orders:

1. You are convicted of the offence of do act/make omission intending in any way to pervert the course of justice pursuant to s 319 of the Crimes Act 1900.

2. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of 18 months from today.

3. Pursuant to s 7(1) of the CSPA, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today.

4. You must report to the Community Corrections office at Parramatta as soon as practicable but no later than 7 days from today.

5. The standard conditions of the order will apply:

1. You must not commit any offence; and

2. You must submit to supervision by Community Corrections officers.

6. The following additional conditions apply:

1. You are to accept any direction by your supervising officer to participate in a rehabilitation program or to receive treatment.

2. You are to continue to reside with your mother or such other location as your supervising officer approves.

3. You are not to leave the jurisdiction, except with the approval of your supervising officer.

90. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

91. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody.

92. Finally, you are now directed to attend the court registry where a copy of this order will be explained and given to you.

93. In respect of the two charges on the s166 Certificate, Sequence 3 and Sequence 5, I order pursuant to s 10A of the CSPA that you are convicted of each charge, without imposing any further penalty.

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Decision last updated: 09 December 2022