R v Edmonds

[2020] NSWDC 687

District Court

New South Wales

Medium Neutral Citation:	R v Edmonds [2020] NSWDC 687
Hearing dates:	6 October 2020
Decision date:	06 November 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 4 years 6 months with a non parole period of 3 years 4 months.
Catchwords:	CRIME - SENTENCE - doing an act intending to pervert the course of justice.
Legislation Cited:	Crimes Act 1900 (NSW), s319
Category:	Sentence
Parties:	Regina (Crown) Kelly Edmonds (Offender)
Representation:	Mr Kelly (ODPP) Mr Townsend (Solicitor for the offender)
File Number(s):	2019/00360389
Publication restriction:	Nil

Judgment

1. Kelly Edmonds, you appear for sentence in relation to two offences. Each offence is doing an act intending to pervert the course of justice.

2. Each offence involves a contravention of s319 of the Crimes Act. The maximum penalty for each offence is 14 years imprisonment. There is no standard non-parole period.

3. The facts surrounding your offending are contained in a document entitled “Amended Statement of Agreed Facts” (Exhibit B).

4. Recast by me as to style, but not substance, the facts may be summarised as follows.

5. As at October 2017, you were the partner of Ms Hayley Karaitiana who had been charged with offences of: firing at a dwelling house with disregard for the safety of persons inside that dwelling house; and possessing a shortened firearm. Ms Karaitiana had been refused bail in relation to those two charges.

6. On 10 October 2017, the legal representatives for Ms Karaitiana made a bail application on her behalf in the New South Wales Supreme Court.

7. As part of the material tendered in those proceedings on behalf of the applicant were two letters purportedly prepared and signed by Dr Anna Sellbach of the Saint Andrew’s War Memorial Hospital in Queensland.

8. One of those letters was dated 15 August 2017 and, in part, it contained the following information:

“I first reviewed Ms Karaitiana after receiving a referral from Dr Chowdhury AKRMA UZ ZAMAN.

Past History

2008 Cervical Cancer

2015 Lung Cancer (left)

2017 – Diabetes

2017 CVA

Subsequent testings after Ms Karaitiana’s CVA revealed multiple metastatic lesions on the brain.

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

Without such treatment Ms Karaitiana’s (sic) QOL would be very bleak.”

9. The other letter was dated 27 September 2017, and, amongst other things, it included the following:

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

I have been informed of the difficulty this presents to Ms Karaitiana being currently incarcerated.

It is imperative that this treatment be commenced as soon as practicable and for the patient to be reviewed in 3-6 months to assess her response to treatment in the hopes of her being suitable for surgery.”

10. On 10 October 2017, the Supreme Court granted Ms Karaitiana bail. In making those orders, Schmidt J, having noted that the parties agreed that cause had been shown (the firearm offences being show cause offences) continued:

“… on evidence tendered this morning, which establishes, by letters provided by various medical practitioners, that the applicant is suffering various cancers, including inoperable brain cancer which is terminable. She has some three to six months to live and requires treatment to alleviate her symptoms which are not available to her in custody.”

Her Honour noted, “in the circumstances, I, too, am satisfied that cause has been shown.”

It is clear that the two letters to which I have referred were critically important to her Honour’s decision to grant bail.

11. The two letters purportedly prepared and signed by Dr Sellbach were not prepared or signed by her. They were prepared and signed by you. I hasten to add that that fact was not known to the lawyers acting for Ms Karaitiana.

12. It is agreed between the Crown and you that the use of those documents in Ms Karaitiana’s application for bail was not the only use to which you intended those documents to be used.

13. Specifically, it is additionally agreed between you and the Crown that, in preparing the documents, you contemplated that they would be used in any ultimate sentence proceedings.

14. The letter dated 15 August 2017 is the first offence of doing an act intending to pervert the course of justice (sequence 5).

15. The letter dated 27 September 2017 is the second offence of doing an act intending to pervert the course of justice (sequence 8).

16. I pause to observe that the Crown does not allege against you that your criminality includes the use of those documents in a successful application made by Ms Karaitiana to vacate a trial date of 25 February 2019, or for a subsequent permanent stay application in relation to the firearms offence proceedings.

17. It is necessary for the Court to form an assessment of the objective seriousness of each of the offences for offences of their kind.

18. In my opinion, each offence is slightly above the mid-range offence, given the two uses to which each document was ultimately intended to be used – and, in the case of the bail application, was successfully used.

19. There are no additional aggravating factors.

20. You did not give evidence in the sentence proceedings. Rather, your subjective circumstances were advanced through a report of Ms Kris North, forensic psychologist. That report was substantially, and relevantly, based on information you provided to Ms North.

21. You are now 40 years of age.

22. You were born in New Zealand. However, your family migrated to Australia in 1999.

23. According to the history you gave Ms North, your childhood was marked by poverty and domestic violence, and you were exposed to drug abuse and anti-social influences from a young age within your own home.

24. It was submitted on your behalf that your upbringing should be characterised as dysfunctional and, therefore, attract the reduced moral culpability which the High Court has directed sentencing Judges to take into account in that circumstance.

25. According to Ms North, you left High School at the end of Year 7. You did, however, return to the Polynesian Performing Arts High School when you were between the ages of 15 and 18 years. And at age 26, you enrolled in Year 10 in Minto High School and obtained your School Certificate.

26. According to Ms North, your work history has been intermittent. There has been some factory work and work for a lawn maintenance company.

27. According to Ms North, you have had a long history of abusing alcohol and illegal drugs since your teenage years.

28. According to Ms North, in more recent times, you have begun to use ice. I do note, however, that, according to you (unsupported by any objective supporting evidence), you have been abstinent from your use of methylamphetamine since you were arrested in November 2019.

29. Apart from domestic violence and the antisocial behaviour in your home, according to the history you gave to Ms North, you have also endured a number of traumatic experiences in your life over and above the domestic violence inflicted on your mother by your father.

30. Based on the histories which you gave her, Ms North has diagnosed you with an adjustment disorder with mixed anxiety and depressed mood. You have also been diagnosed with stimulant use disorder amphetamine type substance, moderate in early remission.

31. You have been in two long term same sex relationships, including your current relationship.

32. You have three children with your co-offender, Ms Karaitiana. Although Ms Karaitiana was the birth mother, her parents are now caring for those children.

33. As a result of tests administered by Ms North, she has concluded that you pose a medium risk for reoffending, and I agree with her for the reasons she identifies in her report.

34. You expressed remorse to Ms North; however, you did not get in the witness box to express that remorse – or to confirm the truth of the history you gave her, particularly that relating to your allegedly dysfunctional upbringing and later traumatic experiences.

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

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

37. A further aspect of your criminal record is that, although it is not an additional aggravating factor, it does not entitle you to the leniency which, in appropriate circumstances, can be extended to a first offender.

38. On balance, I regard your prospects of rehabilitation as being guarded.

39. As I have already said, each offence was a serious offence for an offence of its kind. The act of perverting the course of justice constitutes a direct attack on the whole of the criminal justice system and should be dealt with sternly.

40. No sentence for either offence other than a period of imprisonment is appropriate, and the contrary was not submitted on your behalf.

41. You entered an early plea and accordingly you are entitled to a 25 per cent discount for the utilitarian value of that plea.

42. Some mention was made in submissions that you had provided assistance to authorities by way of an induced statement. However, I am unable to assess the value of that assistance because only the most minimal information was provided to me in relation to it, and I do not intend further discount the sentence for that reason.

43. Although there were two discrete offences, they were in a real sense part of an ongoing course of conduct and, therefore, there will be meaningful partial concurrency. In saying this, I have not lost sight of the dual purposes for which those offences were committed.

44. I intend imposing an aggregate sentence and accordingly it is necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence.

45. For each offence, except for your plea of guilty, the indicative sentence would have been 5 years imprisonment. After the discount of 25 per cent, the indicative sentence for each offence is 3 years 9 months imprisonment.

46. Following your arrest, you were in custody solely referrable to these matters until 11 June 2020. Accordingly, the term of imprisonment will be backdated by 7 months to take that period of custody into account.

47. In assessing the period of imprisonment, I am of the opinion that both general deterrence and specific deterrence are fully engaged – that is, the sentence must be one which discourages others from this type of offending, and you must be discouraged from further offending. On the other hand, of course, the need to encourage your rehabilitation is, and must be, an important consideration.

48. Kelly Edmonds, for the two offences of doing an act to pervert the course of justice, I sentence you to an aggregate term of imprisonment of 4 years 6 months.

49. I decline to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.

50. I therefore fix a non-parole period of 3 years 4 months to date from 6 April 2020 and which will expire on 5 August 2023.

51. I fix a balance of 1 year 2 months to date 6 August 2023 and which will expire on 5 October 2024.

**********

Decision last updated: 12 November 2020