R v Hood

[2007] NSWDC 157

CITATION:	R v Hood [2007] NSWDC 157
HEARING DATE(S):	15-19 & 22 January 2007 10 & 31 May 2007
JUDGMENT DATE:	12 July 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nield DCJ
DECISION:	See paragraph 43
CATCHWORDS:	Criminal law - Sentence after trial - Offence of giving false evidence to an examiner of the Australian Crime Commission
LEGISLATION CITED:	Australian Crime Commission Act (2002 ) s.33(1) Financial Transactions Report Act (1988) Crimes Act 1914 (Clth) s.16A, s.17A, s.19, s.19AC, s.16F
CASES CITED:	See paragraph 35
PARTIES:	Regina (Clth) Michael Joseph Hood
FILE NUMBER(S):	06/11/0521
COUNSEL:	Mr M. Bracks of Counsel (Commonwealth DPP)
SOLICITORS:	Commonwealth DPP Galloways Solicitors & Attorneys

JUDGMENT

HIS HONOUR: As to the sentencing of Michael Joseph Hood.

1. The offender is Michael Joseph Hood. He was born on 22 April 1958. Accordingly, he was aged forty-seven years one month when, on 26 May 2005, he committed the offences, for which I am to impose sentences upon him, and he is aged forty-nine years two months now.

2. The offender is the eldest of his parents’ five children. His parents and three of his four brothers are alive. He has limited contact with his parents and siblings other than his youngest brother. I see nothing in his background relevant to his commission of the subject offences.

3. The offender was raised, so far as I am aware, by loving parents in a happy and supportive environment. I see nothing in his upbringing relevant to his commission of the subject offences.

4. The offender attended primary and secondary schools in the inner western suburbs of Sydney. He completed Year 10 and obtained the School Certificate. I see nothing in his education relevant to his commission of the subject offences.

5. After leaving school, the offender trained under his father’s tutelage as a jockey. He achieved considerable success as a jockey. At the age of about thirty years he ceased his career as a jockey and commenced a career as a horse trainer.

6. During March 1997 the offender suffered injuries to his neck and back when one of two horses that he was leading across a road in Rosehill was struck by a car and killed. He was treated for his physical injuries and for his psychological reaction to the incident and his injuries for some time before being able to resume his career as a horse trainer.

7. The offender was declared bankrupt at the end of 2005. I do not know whether he was declared bankrupt on the petition of a creditor or on his own petition and I do not know the reason, other than, obviously, that he could not meet his liabilities, for his being declared bankrupt. He was in receipt of the New Start allowance from the Department of Social Security from early 2006 until 31 May 2007 when I refused bail to him and committed him to prison pending sentencing.

8. The offender has been married twice and he has had two long term relationships. He is the father of a son, now aged ten years, from his first long term relationship and a daughter, now aged nine years, from his second marriage. His present girlfriend is pregnant to him and the birth of their child is expected next month. I do not know whether his son or daughter is dependent upon him. I assume that his girlfriend is dependent upon him.

9. I assume, in the absence of being told to the contrary, that the offender enjoys good physical health. I note that, although the author of the pre-sentence report, exhibit U, reported that the offender’s

“psychologist reported that he recommenced treating Mr Hood in 2005 for similar depression and anxiety symptoms that had presented in 1997”

I have not been provided with a report of this psychologist, although I have been provided with a report dated 30 October 1998 of Mr S Anthony, psychologist, related to his treatment of the offender during 1997 and 1998 and a report dated 24 December 2006 of Associate Professor G A Starmer, pharmacologist, wherein reference is made to the medication prescribed for the offender from December 1997 to August 1999. However, I have been provided with a report dated 10 May 2007 of Mr T Watson-Munro, psychologist, which seems to indicate that the offender suffers from stress and anxiety. I note that Mr Watson-Munro had a report of Dr R Wilcox, who I understand is a psychiatrist, which has not been provided to me.

10. I assume, in the absence of being told to the contrary, that the offender does not consume intoxicating liquor to excess, or use any prohibited drug.

11. The offender does not have an unblemished character. On 8 July 1977 he was dealt with by a magistrate in the Local Court at Parramatta for the offence of stealing. If this had been his only offence I would have disregarded it. However, on 15 November 2006 he pleaded guilty before Justice Blanch of having supplied a prohibited drug, namely MDMA, commonly called ecstasy, on 2 August 2004 and again on 24 August 2004. He was convicted of those offences and sentence was deferred on his entering into a bond, pursuant to s 9 of the Crimes (Sentencing Procedure) Act, to be of good behaviour for three years. I note that the offender was on bail in respect of the two offences of supplying a prohibited drug at the time when he committed the subject offences.

12. However, notwithstanding his previous offending, the offender is well liked and well respected by people who know him well, as evidenced by the testimonials, exhibits 1, 2 and 7.

13. On 26 May 2005 the offender appeared before an examiner of the Australia Crime Commission for examination in relation to his knowledge of criminal activity of an established criminal network based in Sydney that included George Nikolic and his associates (see exhibit K).

14. The offender’s examination before the examiner was recorded by videotape. A tape of the edited relevant examination is exhibit L1 and a transcript of that tape is exhibit L2.

15. During the examination the offender was asked, inter alia, the following questions to which he gave the following answers:

“Q. Yes, would you look at these documents please. Mr Hood, the first document is a record of an international money transfer application. It records that on 7 November 2003 a person by the name of Peter James of 7 South Street, Granville attempted to send $9,850 Australian to a bank account in the name of Mademoiselle Jeanine Radovic to an account in Grenoble in France and they provided their telephone number, 9713 3460. That was conducted from the Wentworth Bill Branch of the Commonwealth Bank. Did you conduct this translation(as said)?

A. No.

Q. Well, on 11 November 2003, well I should say that transaction was unsuccessful, also because the remitter again purchased the amount in Australia dollars rather than Euro dollars, but on 11 November 2003 a person by the name of Peter James of 7 South Street, in Granville sent $9,822 Australian to the Radovic account in Grenoble and that person signed the document. Were you the - are you the author of the signature at the bottom of that document?

A. No, I’m not the author of that signature.”

16. On 8 August 2005 the offender was arrested and, after being arrested, he was taken to Surry Hills police station, at where he was charged with a number of offences including, particularly, that he gave false evidence to the examiner during his examination and, after being charged, he was released on his bail to appear before a magistrate in the Local Court in the Downing Centre in Sydney for a committal hearing.

17. In due course, on 21 June 2006 the offender appeared before a magistrate in the Local Court in the Downing Centre for the committal hearing. It was to be a paper committal hearing. Not surprisingly or unexpectedly, as the Crown’s case was not disputed or challenged, the offender was committed to appear in this court on 30 June 2006 for arraignment in respect of the charges of giving false evidence to the examiner during his examination and his bail was continued.

18. In due course, on 15 January 2007 the offender appeared before me in the Court in the Downing Centre in Sydney to stand his trial. On that day I conducted a voir dire as to the offender’s objection to some evidence that the Crown Prosecutor wished to adduce and I decided the issues that had been raised by the offender.

19. On the following day, 16 January 2007, the Crown Prosecutor presented an indictment which contained two charges of giving false evidence to the examiner during the examination on 26 May 2005. The offender pleaded not guilty to each charge. A jury was empanelled. The jury heard evidence from twelve witnesses, all called by the Crown Prosecutor, and it received eighteen exhibits, all tendered by the Crown Prosecutor, over three days. The jury heard counsel’s addresses on one day, 18 January 2007, and my summing up on one day, 19 January 2007. The jury returned its verdicts of guilty on 22 January 2007. After taking the jury’s verdicts, I stood over the sentencing of the offender to 10 May 2007 and continued the offender’s bail.

20. The jury’s verdicts of guilty did not surprise me as the Crown’s case was strong to the point of being overwhelming.

21. The Crown’s case, which was accepted by the jury, was that on 7 November 2003 and again on 11 November 2003 the offender, using the name of Peter James and the address of 7 South Street in Granville, applied to the Commonwealth Bank in Wentworthville to transfer an amount of money, being $9,850 on 7 November 2003 and $9,822 on 11 November 2003, to a bank account in the name of Mademoiselle Jeanine Radovic at a particular bank in Grenoble in France and that, when examined on 26 May 2005 about those applications to transfer the money overseas, the offender falsely denied that he had conducted the transaction of 7 November 2003 and that he was the author of the signature on the application form in relation to the transaction of 11 November 2003.

22. In support of the Crown’s case, the Crown Prosecutor presented evidence that on 6 November 2003 the offender, using his own name, but not his own address, applied to the Commonwealth Bank in Merrylands to transfer an amount of money, being $9,850, to the account in the name of Mademoiselle Radovic at the bank in Grenoble and also that on 12 November 2003 he, using the name of Michael James Henry and the address of 8 East Street in Rosehill, applied to the St George Bank in Merrylands to transfer an amount of amount, being $9,827, to the account in the name of Mademoiselle Radovic at the bank in Grenoble.

23. I do not doubt that the offender was the person who applied to transfer the amounts of money overseas and I do not doubt that, when he answered the subject questions asked of him by counsel assisting the examiner, he knew that his answers were false.

24. I consider that the conclusion is obvious, that the offender, in applying to transfer the particular amounts of money overseas, intended and hoped to avoid the reporting requirements of the Financial Transactions Reports Act.

25. There is not any doubt that the offences committed by the offender are serious offences and that they were committed by him in the knowledge that they are regarded by the courts as serious offences. In this regard, the examiner told the offender, when the examiner was explaining the nature and purpose of the examination, that

“If you were to give to the examiner evidence that to your knowledge is false or misleading in a material particular then you would be committing an offence under the Australian Crime Commission Act and the penalty for giving false or misleading evidence to the examiner is a five year goal sentence, a $22,000 fine, or both and out of fairness I advise witnesses that the courts have recently indicated the presumption should be made in favour of a gaol sentence for people who give false or misleading answers to tribunals such as this in these types of examinations.”

26. In my view the offences committed by the offender are serious because the offender was a person who could have assisted the Australia Crime Commission in ascertaining the source of the moneys that the offender transferred overseas thereby identifying a person or persons involved in the serious and organised criminal activity of importing a large commercial quantity of a prohibited drug into Australia and the false answers given by the offender to the particular questions asked of him by counsel assisting the examiner thwarted the Australian Crime Commission’s investigation into that importation.

27. The offences of which the jury found the offender to be guilty are offences contrary to s33(1) of the Australian Crime Commission Act, for which the prescribed penalty is imprisonment for a maximum of five years, or a fine of a maximum of $22,000, or both, when dealt with on indictment, or imprisonment for a maximum of twelve months, or a fine of a maximum of $2,200, or both, if dealt with summarily.

28. As the offences are contrary to a law of the Commonwealth I am required, in determining appropriate sentences to impose upon the offender for the offences, to take into account the several factors set out in s 16A of the Crimes Act (Commonwealth) and any other relevant factor.

29. As to the factors set out in s 16A(2) of the Crimes Act; (a) I have outlined the offences and the circumstances in which they were committed; (b) I note that the subject offences are the only offences to be considered; (c) I state that the subject offences do not form part of a series of criminal acts; (d) I note that there was not any victim of the subject offences; (e) I note that there was not any injury, loss or damage caused by the subject offences; (f) I record that the offender has not shown any remorse for the subject offences; (g) I record, as I have said already, that the offender pleaded not guilty to the charges; (h) I state that, insofar as I am aware, the offender did not cooperate with police in the investigation of the subject offences or any other offence; (j) I consider that the sentences that I will impose upon the offender will have significant deterrent effect upon him; (m) I have outlined the age, background, education, employments, state of health and character of the offender; (n) other than knowing that the offender has the support of his girlfriend, I know nothing about the offender’s future intentions and I am unable therefore to determine the prospect of his rehabilitation; (p) I do not doubt that his girlfriend, who is to give birth to his child next month, will be greatly affected by his imprisonment, but this is not something that is unexpected or unusual, rather it is something expected and usual.

30. One factor not mentioned in s 16A is general deterrence. I see general deterrence as being important. It is not something that can be ignored or undervalued. Witnesses who give evidence on oath or affirmation, whether giving evidence in a trial or a civil hearing, or before a commissioner of the Independent Commission Against Corruption, or an examiner of the Australia Crime Commission, must be deterred from lying contrary to the oath or affirmation by knowing that lying will be punished by a sentence of imprisonment.

31. The offender’s solicitor, Mr B Galloway, who appeared for the offender on the sentencing proceedings, but not on his trial, submitted that the offender’s culpability for the offences was reduced because he was sleepy and affected by medication that he had taken before giving evidence to the examiner. Mr Galloway submitted that, notwithstanding that the offender had not given evidence during his trial or during the sentencing proceedings, the fact that the offender was sleepy, or affected by something, or both, could be determined by the offender’s appearance and speech when giving evidence to the examiner, what he said in evidence to the examiner and comments made about him by people, presumably commission personnel, after he had given evidence, which comments could be heard on the video tapes which recorded the proceedings. Mr Galloway tendered the video tapes and transcripts of the proceedings on 26 May 2005, exhibit 8, and 27 May 2005, exhibit 9, and a compact disk of a compilation of parts of those tapes, exhibit 10.

32. I watched the video tape of the proceedings on 26 May 2005, which is exhibit L shown to the jury during the trial. To my mind there was nothing in the offender’s appearance or speech which suggested that he was sleepy or under the influence of something, whether intoxicating liquor, or a drug, or drugs, and there was nothing in his answers to the questions asked of him by the examiner or counsel assisting the examiner which suggested that he was sleepy or under the influence of something. In my view the offender was comfortable and relaxed during the examination and I consider that the offender answered the questions asked of him appropriately and that his answers showed that he understood and appreciated the questions asked of him, albeit that he appeared evasive when answering some questions asked of him and albeit that he told counsel assisting the examiner that he had “a lot of difficulty remembering” because he had “trouble sleeping” for which he took “Stilnox to go to sleep” and “Valium during the day”. In the absence of the offender giving evidence that he was sleepy and that he was affected by medication that he had taken, or both, I am not persuaded in the slightest that the offender’s culpability for the offences is reduced.

33. As to the comments made about the offender by people, presumably commission personnel, after he had given evidence, Mr Galloway submitted that the comments were “he’s so spaced out” and “what’s he on”. The Crown Prosecutor who appeared before me on 31 May 2007 conceded that someone said “spaced out” although I could not hear this comment. Although the Crown Prosecutor did not concede that someone said “what’s he on”, I heard someone say “what’s he on about”. However, accepting that someone said these things, as alleged by Mr Galloway, and that these things were said about the offender, I do not accept that the offender’s culpability for the offences is reduced. I point out that, whatever might have been the condition of the offender on 27 May 2005, it was his condition, as is apparent in the video recording of his examination, on 26 May 2005, that is both relevant and important.

34. Mr Galloway submitted that, whether or not the offender’s culpability for the offences was reduced because he was sleepy and affected by medication that he had taken before giving evidence to the examiner, the offences committed by the offender fell towards the bottom of the range of objective seriousness for offences of their kind. I do not agree. Counsel assisting the examiner told the offender the purpose of the examination in these words:

“As a result of those investigations” I interpose investigations by the Australian Crime Commission personnel “on 15 December last year the ACC arrested and charged several persons with conspiring to import 161 kilograms of ecstasy into Australia. That ecstasy, sir, has been valued at an estimated $40 million. One of the persons arrested was the person who’s referred to in paragraph 1A of the summons” and I interpose to say that that person was George Nikolic “and his arrest was well publicised at the time, and I can indicate that enquiries in relation to that matter are continuing and further arrests are expected. Another person was arrested just three weeks ago in relation to that importation. As the examination progresses I will be asking the witness to carefully bear in mind what I have just said about the nature and extent of the commission’s enquiries.”

The evidence presented by the Crown during the offender’s trial proved beyond a shadow of a doubt that the offender had participated in sending amounts of money to an overseas bank account which was ascertained to be the source of the funds which were used to buy the ecstasy imported into Australia. Not surprisingly, the Australian Crime Commission was interested in ascertaining the source of the amounts of money sent overseas by the offender. As I have said already, the offences committed by the offender are serious offences and, in my view, fall at least within the middle of the range of objective seriousness for offences of their kind.

35. Both the Crown Prosecutor and Mr Galloway drew my attention to a number of decided cases which might assist me in the determination of appropriate sentences to impose upon the offender for the subject offences. The cases were, chronologically, R v Yilmaz CCA unreported 4 March 1991, R v Waterhouse CCA unreported 24 February 1993, R v Bulliman CCA unreported 25 February 1993, R v Aristodemou CCA unreported 30 June 1994, R v Chad CCA unreported 13 May 1997, R v Chapman CCA unreported 21 May 1998, R v Treglia 2002 NSWCCA 338, R v Hughes District Court of Queensland unreported 22 April 2004, R v Mahoney 2004 NSWCCA 138, R v Kordic District Court of Queensland unreported 29 July 2005, R v Pile 2005 NSWCCA 74, R v Pelham Supreme Court of Tasmania unreported 27 October 2005, R v Delmadrors District Court of Western Australia unreported 21 March 2006, R v Quaid Magistrates Court of Western Australia unreported 24 July 2006, R v D’Alessandro, District New South Wales unreported 30 January 2007.

36. Although each case turned on its own facts, there is a central theme in all of the cases and that is that, except in exceptional circumstances, a sentence of imprisonment is the only appropriate sentence to be imposed on an offender who, as a witness, lies when giving evidence on oath or affirmation in a court or court-like tribunal or commission.

37. I note that the offenders Quaid and D’Alessandro were involved, as was the offender, with the Australian Crime Commission’s operation Schumacher. Quaid gave false evidence to the examiner in that he did not recall that on 12 November 2004 he provided a named person with $9,805 and gave that person instructions to send that money overseas. D’Alessandro gave false evidence to the examiner in that he denied that on 18 February 2004 he took $120,000 cash from Perth to Sydney in a black carry bag and that at Manly he met a person and placed the bag containing the money in a residence at 10 Darley Road in Manly. Quaid pleaded guilty to the offence before a magistrate in the Magistrates Court in Western Australia and he was sentenced to imprisonment for ten months with release on cognizance immediately. I note that the jurisdiction of the magistrate in the Magistrates Court was, as I have said already, imprisonment for a maximum of twelve months or a fine of a maximum of $2,200 or both.

D’Alessandro pleaded guilty to a charge before a judge of this Court and he was sentenced to imprisonment for twelve months with release on recognizance after serving three months. I consider the sentences imposed in these cases to be indicative of appropriate sentences to be imposed upon the offender.

38. I have determined, taking into account the objective seriousness of the offences, and the various factors to which I have referred, that the only appropriate sentence to impose upon the offender for each offence is one of imprisonment and that the appropriate sentence for each offence is imprisonment for eighteen months.

39. As to whether the sentences should be served concurrently or consecutively or partly concurrently and partly consecutively, I consider that, notwithstanding that both offences were committed on the one day and at about the same time, because there are two separate offences, and to properly punish the offender for those offences, the sentences should be served partly concurrently and partly consecutively.

40. As to totality, I consider that the overall, or total sentence for the two offences should be imprisonment for two years.

41. As the sentences, in aggregate, do not exceed three years and as required by s 19AC of the Crimes Act, I will order that the offender be released on recognizance after having served nine months of the period of two years.

42. Accordingly, Michael Joseph Hood, for each of the two offences of giving false evidence which you knew to be false in a material particular before an examiner of the Australian Crime Commission, of which the jury found you to be guilty, you are convicted.

43. As to each offence I sentence you to imprisonment for eighteen months, with the sentence for the first offence being from 31 May 2007 to 30 November 2008 and the sentence for the second offence being from 1 December 2007 to 31 May 2009.

44. I order that you be released on 28 February 2008 on your entering into a recognizance, yourself in the sum of one thousand dollars, without surety, to be of good behaviour for fifteen months, that is from 1 March 2008 to 31 May 2009.

45. Mr Hood, I am required by s 16F of the Crimes Act to explain to you the sentences that I have imposed upon you. The jury found you to be guilty of the offences. I agree with the jury’s verdicts. I have convicted you of the offences. I have imposed a sentence of imprisonment for eighteen months for each offence. I have determined an overall or total sentence of two years for the two offences. I have ordered your release on 29 February 2008 after you have served nine months of the period of two years. You will be subject to a recognizance, which is another word for bond, for fifteen months. You will be required to be of good behaviour during the period of fifteen months. If you offend within the period of fifteen months you will breach the recognizance and you may be returned to prison to serve the balance of the total sentence.

46. As to the four offences referred to in the certificate pursuant to s 166 of the Criminal Procedure Act, I remit those offences to the Local Court in the Downing Centre in Sydney on Friday week, 20 July 2007, for mention to fix a hearing date.

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