R v Kassab
[2014] VCC 868
•30 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00219
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED KASSAB |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
| DATE OF TRIAL: DATE OF PLEA HEARING: | 19 – 23 May 2014 30 May 2014 | |
DATE OF SENTENCE: | 30 May 2014 | |
CASE MAY BE CITED AS: | R v. Kassab | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 868 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentence following trial for perjury committed to successfully adjourn the offender’s forthcoming trial – importance of general deterrence – mid range offending – no prior convictions – 6 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Manova | OPP |
| For the Accused/Offender | Mr R. van de Wiel QC | Theo Magazis |
HIS HONOUR:
1 Mohammed Kassab, following a five‑day trial, you have been found guilty of committing statutory perjury for which the maximum penalty is 15 years' imprisonment.[1]
[1]Section 314(1) of the Crimes Act 1958.
Circumstances of offending
2 The circumstances of your offending are as follows. You were charged with false imprisonment in September 2010. Your trial was due to commence in this court on 27 August 2012. You had a painful left inguinal hernia, diagnosed by your general practitioner on 13 August 2012. This was a genuine medical condition for which you first sought medical assistance in March of that year.
3 The GP referred you to a general surgeon for corrective repair surgery. You saw the surgeon on 21 August. His opinion was that the condition did not require emergency or immediate attention, although you required surgery within 90 days. He indicated to you that he was free to perform the operation on 28 August if you wished to take that opportunity as a private patient, subject to you accepting a quote as to payment for the surgery and, of course, making the booking. You told the surgeon that you had the forthcoming trial and feared the possibility of incarceration.
4 On 24 August, you received the quote letter from the surgeon which stated that you had to pay the surgeon's fee before the operation, and other fees on the day of the procedure, and that you should "Please phone ASAP if you wish to go ahead". Obviously, you had to make the booking for the proposed surgery, but no booking was made and no operation went ahead on 28 August.
5 In the meantime, on 22 August, you obtained a medical certificate from your GP stating that you had severe groin pain requiring semi‑urgent surgery on 28 August. This date was based on your advice to the GP; not that of the surgeon.
6 The following day, 23 August, in your presence your solicitor applied for an adjournment of the trial on the strength of that medical certificate. You told your lawyer that the surgery was booked for 28 August. The Chief Judge said the adjournment application could be made on 27 August, which was the day the trial was due to commence, and that he (the Chief Judge) required some "decent evidence" that you needed urgent surgery.
7 Accordingly, on the following day, 24 August, you went back to your GP and obtained an expanded medical certificate, effectively saying the same as the first one. But you made no effort to obtain evidentiary material from the surgeon, who, of course, knew no booking had been made.
8 On 27 August, you appeared before the Chief Judge. Again, you told your lawyer that the surgery was booked for 28 August. In reliance upon the second medical certificate from the GP, counsel applied for an adjournment of the trial on the basis that you were booked for surgery the following day. In response to a query from the Chief Judge as to when the surgery had been booked, you falsely stated from the body of the court that that had probably been done on 13 August. The prosecution made clear that it would not oppose the adjournment application if there could be some confirmation that the surgery was booked for the following day. The presiding judge said you could give sworn evidence about that, so you went into the witness box and knowingly gave false evidence that you were booked to undergo surgery on 28 August. The application was successful and the trial was adjourned to commence on 6 May 2013.
9 Later police inquiries confirmed that you were not booked in for the surgery on 28 August. You were interviewed by police about the perjury on 17 October 2012 and still claimed you were booked in for the surgery, but you said it could not be funded, so it was cancelled.
Legal process
10You were charged with the offence in October 2012. You conducted a contested committal in February 2013. At trial, you gave evidence claiming you had an honest, but mistaken, belief that you were booked in for the surgery on 28 August. Obviously, the jury disbelieved you.
11You said you wanted the operation before trial because you believed you could not obtain proper medical attention in a prison environment and you were worried that because of the hernia discomfort you might not be able to sit in court for the 10 to 15 days the trial was expected to take. You claimed that you gave the surgeon's quote letter to your mother, who undertook to make all necessary arrangements, including as to booking and payment, but she forgot to make the booking and could not raise enough money. You claimed you only found out about this when you returned home on 27 August after you obtained the adjournment. Your mother gave evidence in support. Your counsel agrees that the proper interpretation is that the jury disbelieved you and your mother as to this aspect. I agree.
12There is 167 days' pre-sentence detention, up to, but not including, today. I will explain the chronology shortly.
Background and personal circumstances
13I will turn to your background and personal circumstances. You are now 25. You were 23 at the time of offending. You were born in Melbourne and have a Lebanese Muslim background. You are the youngest of six children, with three brothers and two sisters. You have a good relationship with your parents and all of your siblings. Sadly, in 2010, your father died from bowel cancer. You were then aged 18. You had a good relationship with him and were devastated by his loss.
14Your schooling finished effectively in Year 9. You left in early Year 10 when you were 15 and immediately went to work with your brother, who was then running a concreting business. You worked as a concreter for ten years from that time until you were 25 and had to stop work due to the hernia problem. In material I have received, you were described as an “asset” to the company and work is available to you in that field upon your release from prison.
15On 14 June 2004, when you were 15, you were stabbed in an incident at Broadmeadows. Apparently, there had been some sort of an altercation. Later you saw the person involved and you and your brother stopped your car and ran towards him. But, unknown to you, one of his friends intervened and stabbed you from behind, piercing your heart. This was a serious, indeed life‑threatening, injury and apparently you died on the operating table. You were successfully revived and spent about 18 days in hospital.
16It was a very traumatic incident and you suffered significant and long‑term anxiety and a post‑traumatic stress disorder. You have, over a number of years, received treatment pursuant to a mental health care plan. All this has been set out in materials provided to me that explain the incident and its consequences for you, both physically and psychologically. You were at that time a talented junior footballer and apparently had good prospects of being selected to play with an AFL team, but, as a result of that incident, you lost that chance in your life.
17As a result of the trauma of that situation, over the years you developed a multifaceted problem of anger, asthma, anxiety and depression. To your credit, unlike a number of people who suffer those sorts of problems, you do not have any alcohol or illicit drug issues. You remain living with your mother, who has cared for you over many years, and I accept that you have deep affection for each other.
18In 2008, you married and of that relationship there are two children, now aged two and four. They live with you and your wife, and you all live with your mother. But I am told there have been problems in your marriage for the last couple of years.
19In relation to the false imprisonment matter, you were assessed by psychologist, Tim Watson‑Munro. I have received a report from him dated 23 August 2013. There are a number of significant errors in that report and your counsel has acknowledged that it is factually wrong and, as he put it, "totally confusing". However, it is agreed that I should have regard to the fact that when he saw you in May 2013, the psychologist tested you and confirmed that you were suffering from a depressive illness and features of an anxiety disorder with associated low self‑esteem. You did not, and do not, have any major psychiatric problems. However, the psychologist said you would benefit from cognitive behaviour therapy focussed upon systematic desensitisation referable to the cues which have led to your anxiety and that you would benefit from social skills training and one‑to‑one supportive and motivational psychotherapy. He expressed confidence as to your overall prognosis from a forensic perspective. That confidence may well have been misplaced.
20Returning to the chronology, you were charged with the offence of perjury on 17 October 2012 and spent five days in custody before you were released on bail. As I said, the trial was due to start on 6 May 2013.
21You had the hernia repaired in April 2013, by which time there were two groin hernias to deal with.
22Instead of going to trial, on 6 May 2013 you pleaded guilty to the charge of false imprisonment and on that matter you were sentenced on 7 November 2013 and released on a community correction order for a period of three years with conditions of performing community work, engaging in supervision, receiving mental health treatment and judicial monitoring. The reasons for sentence are not available.
23Your progress on the CCO was abruptly interrupted when, on 10 December last year, you were arrested and charged with kidnapping. This alleged offence occurred whilst you were on bail for the perjury charge. Accordingly, you were refused bail on the kidnapping charge and on 19 December 2013, your bail on the perjury matter was revoked and you have remained in custody since that time. Accordingly, there is, as I say, 167 days pre‑sentence detention, which is made up of the initial five days in custody and the 162 days since 19 December 2013. In March this year, you were committed to stand trial on the kidnapping matters and that trial is listed for hearing in May 2015.
24The other personal matters are that nine months ago you sponsored a disadvantaged child in Lebanon and are apparently paying $50 per month; and you are presently undertaking a welding course, between 28 April and 30 June this year, which has been arranged through the prison.
25Leaving aside the psychological issues, there is no resulting physical disability arising from the stabbing incident other than that some time after that, you were diagnosed as suffering from a cardiac aneurism, and that issue must be constantly monitored. This problem has resulted in you being deemed as only suitable for restricted activity in the prison and, apparently, you are not working there at the moment. Nevertheless, you are concerned about the potential for some significant medical complication and I note that in December last year you collapsed in your cell and were taken to hospital, where it was noted you needed review as to asthma and depression. Then, in March of this year, you experienced chest pains and were taken to hospital where you were monitored for 24 hours and then returned to prison.
Mitigating circumstances
26There are a number of mitigating circumstances which I accept. The first is that you come from a good, close family background. As I have said, you have received support, and will continue to receive a support, from your mother and siblings, one of whom has been with you in court on each occasion, along with your mother.
27Next, you suffered the terrible effects of the stabbing incident and then the very sad loss of your father.
28Importantly, you are a youthful offender. The law strives to advance the rehabilitation of young offenders and accepts that a prison environment may be very corrosive of that ambition. Importantly, you have no prior convictions and your personal history indicates that have been a full and productive worker for over ten years now. You are a community‑minded person. You achieved all of this in the presence of a long history of anxiety and mental health problems. I accept that your physical condition may be aggravated by the custodial environment that you are in at the moment.
29You established a marriage and had two children, whom I do not doubt you love very deeply. You have seen them whilst you have been in prison, but your present situation prevents you from having fruitful contact with them. Unfortunately, it would appear that your marriage has broken down.
30You will remain in custody now; it would appear, at least until May 2015 when you are going to stand trial on the kidnapping matter. I do not hold any of that against you and make no assumption about that case, other than that you are contesting it.
31It is, in all the circumstances, difficult for me to gauge your prospects of rehabilitation because you are now charged with that serious offence and, because of that; your bail has been revoked. The consequence is that now you will remain in custody for a significant period of time and you have had no or little time to respond to the community correction order which was imposed in November last year.
Other sentencing considerations
32There are, of course, other important sentencing considerations. I must have regard to the maximum penalty of 15 years' imprisonment, which highlights the seriousness of this offence and also stands as the penalty for the worst type of case. However, yours does not fall into that severe category.
33 I must also consider current sentencing practice and I have reviewed a number of cases produced by the prosecution and heard submissions about them. I am informed there are no Sentencing Advisory Council statistics for this offence. It is fair to say every case turns on its own facts and circumstances and there can be a wide variety in the commission on this particular offence. But, on any view, perjury is a serious offence, particularly when committed by the giving of false evidence in court. In R v. Schroen [2], a case of in‑court perjury, Vincent JA emphasised that the integrity of the operation upon which the community depends,
[2][2001] VSCA 126, Winneke P and Charles JA agreed with Vincent JA. See also R v Taylor [2006] VSCA 124,[24], per Neave JA.
“….may be seriously compromised and the achievement of the ends of justice thwarted by the deliberate making of false statements on oath. It is not always easy or even possible to establish that perjury has been committed. Sometimes, unfortunately, the lie may not be exposed and the injustice which has been occasioned remain unrectified. Not only can this have a serious effect upon those with a direct interest in the outcome of a particular matter, but it may also engender a reduction of confidence in the community in the reliability of court decisions generally. For these and a number of other good reasons, the crime of perjury, particularly when committed in a curial setting, is regarded very seriously indeed. The sentencing judge correctly indicated that the principle of general deterrence will, in consequence, normally possess a high degree of significance as a sentencing consideration. As Charles JA pointed out in R v. Patniyott & Dailakis, this offence can strike at the very foundation of the legal process and it would be a wholly exceptional case where the giving of false evidence on oath would not warrant an immediate custodial sentence.
Of course, the crime of perjury can be committed in a wide variety of circumstances and for a multitude of motives some of which are very substantially more deserving of condemnation than others. The consequences of the making of perjurious statements may also differ dramatically. In this context, it must be borne in mind that the offence carries a maximum penalty of imprisonment for 15 years." [3]
[3][14] – [16].
34This statement of principle has been echoed in many cases in numerous jurisdictions throughout Australia and it applies with great force to your case. [4]
[4]See, for example: R v WLP (2005) 158 A Crim R 151 (Queensland Court of Appeal), [29], per Williams JA, with whom Jerrard JA and Mullins J agreed; R v Mahoney [2004] NSWCCA 138, [12], per Shaw J, with whom Simpson and Bell JJ agreed; Morgan & Ors (1995) 82 A Crim R 518 (Western Australian Court of Criminal Appeal), 525; and R v Wacyk (1996) 66 SASR 530
(South Australian Court of Criminal Appeal), 533, per Doyle CJ and 536, per Perry J.
35In R v. De Gelder [5] a decision of the Court of Appeal of Buchanan JA, his Honour was dealing with a case of curial perjury committed by an applicant for bail. I note that it was argued on his behalf that he was in a state of confusion and despair immediately after receiving what he considered to be an excessive sentence. The perjury occurred when he was making a bail application in relation to an appeal against sentence. On the second day of that application he admitted the perjury of his own free will and apologised to the court. His Honour said: "In my opinion, the gravamen of the offence lies not only in perjured evidence perverting the course of justice, but the tendency of the evidence to distort a judicial decision, or even an administrative decision. What is relevant is the conduct and its potential, not its effect." [6] Here, your perjury did distort the judicial decision made by the Chief Judge. Buchanan JA continued: "The importance of the testimony of witnesses in our adversarial system of justice is obvious. General deterrence is a very important consideration in sentencing for the crime of perjury. The deliberate undermining of the basis on which decisions are made by the courts generally requires significant punishment.” [7]
[5]Unreported, 4 April 2003 (No.36 of 2003).
[6][6].
[7][7].
36Your offending was calculated and well-planned. It did not occur on the spur of the moment, for example, as a response to a moment of panic or discomfort whilst undergoing the rigours of cross‑examination, such as occurred in De Gelder. You knew all along that the surgery was not booked. The highest it could be said was that the surgeon was available to operate on 28 August 2012. You knew when you gave evidence that you had to make the booking and pay up front and that neither you nor your mother had done either of those things. Knowing that you had to get "decent evidence" you obtained and relied on the second medical certificate from the GP which you knew falsely stated that you were booked for surgery on 28 August 2012. You maintained this falsehood with your lawyers. You knew that the surgeon would not have a backed you up. You decided to deceive the court so that you could get the adjournment of the trial and you succeed in the endeavour.
37No doubt your two to three‑week trial was ready to proceed, witnesses were ready to give evidence and legal representatives had worked hard in the preparation of the matter. The prosecutor indicates that was so. Cost and inconvenience was caused as a result of the wrongful adjournment of the trial for eight months. This Court works hard to provide litigants with certainty as to the commencement date of proceedings and, as a consequence, other cases miss out on that fixture. The parties and presiding judicial officers must be able to rely upon the integrity of adjournment and other applications.
38Your perjury struck at the heart of justice and it may have tended to undermine the integrity of genuine applicants in other cases of like kind. However, as I have said, yours is not the worst type of case. No judgment was wrongly made; no person was wrongly convicted; you did not commit the offence to achieve a wrongful acquittal in the false imprisonment trial or concerning sentence in that matter; and you were not motivated by financial gain.
39While you contested the matter, which were you entitled to do and for which there should be no punishment, you have shown no remorse. Hence, you are not entitled to any significant discount for having pleaded guilty at the earliest time, thereby providing a utilitarian benefit and serving the ends of justice.
40The prosecution submitted that your case should not be seen as at the lowest end of the scale, but rather mid‑range. I agree. It agreed with my characterisation of the offending as I have set it out, which I foreshadowed to defence counsel and which he substantially agreed with in the plea hearing.
41Your counsel submitted that yours was an unusual case and that it ought to be seen as an offence at the lower end of the scale of perjury. For reasons I have given already I do not agree with that submission. Your counsel hypothesised as to what might have happened in court had you simply relied on the personal discomfort you felt as the basis for the adjournment application. I am unable to speculate about that, other than to note that your GP said in evidence that he considered you would not be fit for trial if you had the hernia surgery but he said you were not unfit for trial because of the condition itself. So, I doubt that that would have been a proper basis for the adjournment application. Certainly, the prosecution indicated that it would have opposed the application on that basis.
42Your counsel conceded that there should be a sentence of immediate imprisonment but submitted that it ought to be no more than three months' imprisonment. I am satisfied that notwithstanding the combined force of the mitigating circumstances, your case falls between the most serious category of perjury offences and those at the lower end of the scale, it is a mid‑range offence, and that you should be sentenced to serve an immediate term of imprisonment, as you concede.
43Whilst I must have regard to the principle of proportionality, the promotion of your rehabilitation and the combined force of the mitigating circumstances; just punishment and general deterrence are of great importance in a case such as this. Others who may be motivated to act as you did must understand that perjury committed in court will, in the absence of exceptional circumstances, merit an actual term of imprisonment.
44I do not agree with the quantum of sentence which has been referred to by your counsel, particularly in light of the serious and clear enunciation of principle in the cases that I have mentioned.
45Finally, on behalf of the community, I strongly denounce your offending.
Sentence
46Mr Kassab, please stand up. On the charge of perjury you are convicted and sentenced to six months' imprisonment.
47I declare that the period of 167 days pre‑sentence detention be reckoned as already served on that sentence and that such declaration be entered into the records of the court.
48Please sit down for the moment. Is there anything else that needs to be dealt with?
49MS MANOVA: No, there are no consequential orders sought, your Honour.
50HIS HONOUR: Nothing on your side Mr van de Wiel?
51MR VAN DE WIEL: Not at all.
52HIS HONOUR: Mr Kassab, you need to go with the prison officer now, thank you. Please remove the offender.
53[Offender removed]
54Thank you to both counsel for your assistance in the matter.
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