R v Elmir

[2018] NSWDC 516

District Court

New South Wales

Medium Neutral Citation:	R v Elmir [2018] NSWDC 516
Hearing dates:	11 December 2018
Decision date:	11 December 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	1. You are convicted. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, you are ordered to comply with a Community Correction Order for 1 year from today. 2. The standard conditions of the order apply: (a) You must not commit any offence; and (b) You must appear before the court if called on to do so at any time during the term of the order. 3. The following additional conditions apply: •To perform 150 hours of community service work •To abstain from using prohibited drugs or drugs not prescribed for him •To submit to supervision by a community corrections officer •To reside at the address provided to the court registry today or to notify the registry of any proposed change by prepaid registered post. 4. To report to Hurstville Community Corrections Office within 7 days of today. 4. If you fail to comply with the conditions of the order, further action may be taken against you. This may require you to return to court to be re-sentenced.
Catchwords:	CRIMINAL – sentence - do act with intent to pervert the course of justice – false medical certificate to explain absence from court – breach of s9 bond – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001
Category:	Sentence
Parties:	Regina Mahmood Elmir
Representation:	Solicitors: Crown: Mr A Fiorenza Defence: Mr M Berrell William O'Brien & Ross Hudson Solicitors
File Number(s):	2017/000204249

Judgment

1. In this matter, Mahmood Elmir appears for sentence in relation to a single offence of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900. The offence carries a maximum term of imprisonment of 14 years and there is no relevant standard non-parole period. The facts are as follows:

2. On 3 June 2016 police served a Future Court Attendance Notice on the offender for the offence of in company destroying property by means of fire pursuant to s 195(1A)(b) of the Crimes Act 1900.

3. On 6 October 2016 the offender appeared before the Burwood Local Court when a hearing date of 22 December 2016 was fixed.

4. The offender failed to appear at the Burwood Local Court on 22 December 2016. The offender was not legally represented on 22 December and the Court received no explanation for his failure to attend. He was convicted in his absence for the s 195 offence and a warrant was issued for his arrest.

5. On 11 January 2017 the offender presented at Kogarah Police Station. Upon doing so he was arrested in relation to the warrant issued for his arrest on 22 December 2016.

6. On arrest he was asked why he did not attend court on 22 December and he replied, “22 December, I honestly believed my court date was on 17 January 2017”. The officer responded, “It was definitely 22 December 2016”, to which the offender replied; “Are you sure? I wouldn’t have come in to report if I knew I’d missed my court date”.

7. On 21 February 2017 the offender appeared at Burwood Local Court where his legal representative, Mr Kahan, made an application pursuant to s 4 of the Crimes (Appeal and Review) Act that the conviction in respect of the s 195 offence be annulled. In support of the application a medical certificate purportedly explaining the offender’s reason for being absent from Court on 22 December 2016 was tendered.

8. The medical certificate purported to have been completed by Dr Michael Bonning of the Sans Souci Medical Practice. It was dated 22 December 2016, and stated that the offender attended the practice that day and was diagnosed as suffering from gastroenteritis and consequently deemed unfit to continue his usual occupation that day.

9. Despite there being no issue raised by the Court on 21 February 2017 as to the veracity of the medical certificate the application to annul the conviction was nevertheless refused.

10. On 2 March 2017 police contacted the Sans Souci Medical Practice and confirmed that Dr Bonning had not worked at the practice since June 2016. Dr Bonning later provided a statement to this effect and confirmed that on 22 December 2016 he was in fact overseas in the United Kingdom.

11. Dr Bonning was shown a copy of the medical certificate tendered on behalf of the offender on 21 February 2017 and confirmed that he did not “create it, sign it, or otherwise have any knowledge of its existence, or give any consent for it to be created”.

12. The Practice Manager of the Sans Souci Medical Practice confirmed to police in a statement that the medical certificate tendered by the offender to the Court on 21 February 2017 was “distinctively different in format to the medical certificates issued by the Practice’s general practitioners”.

13. She also confirmed that no patient by the offender’s name was treated at the practice on 22 December 2016, or on any other day.

14. The offender used the fraudulent medical certificate tendered by his legal representative on his behalf to the Court on 21 February 2017 with the intention of perverting the course of justice, namely by applying for an order to annul the conviction made in relation to the s 195 offence referred to.

15. As has frequently been observed by the Courts, offences which compromise the integrity of the curial process are significant offences. They will usually, except in extraordinary circumstances, result in a sentence of full time imprisonment.

16. The offender is presently some 36 years of age. Before the Court is his criminal history which in view of his age can at least be reasonably described as not extensive, although there are a number of recorded offences covering offending conduct such as assault occasioning actual bodily harm, steal property in dwelling house, obtaining property by deception, driving while licence suspended, possessing prohibited drugs on a number of occasions, repeated offences of licence expired less than two years, destroying property in company using fire, larceny, goods in personal custody suspected of being stolen. Of note, is that in respect of the offences that I have referred to they were all dealt with without the imposition of a term of actual imprisonment, whether in the first instance or on appeal.

17. Having been arrested in respect of this offence, it is of note that it was committed while he was the subject of a s 9 bond, which is an aggravating circumstance. Although the Crown was of the opinion that he was also on bail in respect of the offence of destroying property by fire in company, as he was charged by way of a Future Court Attendance Notice, he may well not have been on bail in respect of that matter at the time it was listed for hearing. Nonetheless he was on conditional liberty as a result of the s 9 bond. I note the s 9 bond expired in October this year and he was not called up in respect of the breach.

18. As a result of being charged in respect of this matter, he was in custody for this matter alone from 5 July 2017 to 29 November 2017, being a period of approximately four months and 25 days, or close enough to what might be referred to as five months. Absent that period of previous custody I would impose a period of full time custody, because offences of this nature must be regarded seriously by the Court because of the substantial undermining effect they have in relation to the processes of justice.

19. Courts should be entitled to rely on documents provided to them as not being fraudulent or false. However, as I have previously indicated, in view of the period of time already spent in custody and the likely term of full time custody that would be appropriate, which would need to be backdated to take account of the approximately five months previously spent in custody in relation to this matter, in my view it is appropriate to take that period of custody into account in a different fashion, that is by determining that it is appropriate to impose a Community Corrections Order rather than a period of full time custody backdated.

20. Mr Elmir, would you please stand? You are convicted in relation to the offence of do an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900. You are sentenced to a Community Corrections Order of one year commencing today. It is to be conditional on you entering into such an order subject to the following conditions:

1. You are not to commit any offence whilst subject to the Community Correction Order.

2. You are to submit to supervision by a Community Corrections Officer.

3. You are to perform 150 hours of community service work during the term of the order.

4. You are to abstain from the use of prohibited drugs or prescription drugs not prescribed for you.

5. You are to reside at the address provided on entering the order, and to remain resident at that address, with the exception that you may change it providing you inform the Registrar of the court by registered post of any proposed change of address.

21. I further note that if you are in breach of the Community Corrections Order you are to re-attend on court as required.

Now, do you understand all that, Mr Elmir?

OFFENDER: Yes, your Honour.

22. HIS HONOUR: I have some significant doubts about your ability to comply with the terms of the order as made because of your past history in relation to turning up when you are supposed to at Community Corrections, and matters of that nature.

23. I will make it a further condition that you attend at the Hurstville Community Corrections Office within seven days of today in order to commence that order. Do you understand that?

OFFENDER: Yes, your Honour.

HIS HONOUR: Mr Berrell, your client should regard himself as being lucky that he is not actually doing further time.

BERRELL: I think so.

HIS HONOUR: Hopefully he will comply with the order and he will not have to come back.

I do not think there was anything in breach of the new provisions, Mr Fiorenza?

FIORENZA: No, I don’t think so.

HIS HONOUR: I’m not yet that familiar with them that I may not be, so if you find that there is some error please let me know, hopefully before the end of the week, so it can be corrected before we’re not here for another few months.

FIORENZA: Yes, your Honour.

HIS HONOUR: Thank you. Thank you, Mr Berrell.

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Decision last updated: 17 September 2019