R v Macquarie (a pseudonym)

[2019] NSWDC 763

District Court

New South Wales

Medium Neutral Citation:	R v Macquarie (a pseudonym) [2019] NSWDC 763
Hearing dates:	26 July 2019
Decision date:	29 July 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 3 years with a non parole period of 18 months.
Catchwords:	CRIME - SENTENCE - doing an act with the intention of perverting the course of justice.
Legislation Cited:	Crimes Act 1900 (NSW), s319.
Category:	Sentence
Parties:	Regina (Crown) Macquarie (a pseudonym) (offender)
Representation:	Ms Sponza (ODPP) Mr Hoare (Counsel for the offender)
File Number(s):	2018/89924
Publication restriction:	Non publication of the names of the offender, "the accused", Ms X or the child Shirley - or anything that might identify any of them, directly or indirectly.

​judgment 

1. Mr Macquarie, you appear for sentence today in relation to one offence, that is, doing an act with the intention of perverting the course of justice. 

2. This involves a contravention of s 319 of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years' imprisonment. There is no standard non-parole period.

3. The facts surrounding your offending are contained in a statement of agreed facts.  Slightly recast by me, as to style but not substance, they are as follows. 

4. You are the stepfather of an accused man ("the accused").  The accused was previously married to Ms X (a pseudonym).  The accused and Ms X are now divorced.

5. Whilst the accused was married to Ms X, a seven year old girl came to live as part of their family.  Her name was Shirley (a pseudonym).  Ms X was Shirley's aunt.  

6. After the accused and Ms X separated, Shirley continued to live with Ms X. 

7. On 18 September 2017, the accused was charged with 18 alleged sexual assaults against Shirley.

8. In the category of criminal offending, Mr Macquarie, there can be little to rival the seriousness of sexually offending against children. 

9. The accused has pleaded not guilty to those 18 charges.  He is entitled to have a trial in accordance with law - and Shirley is entitled to freely participate in that process as well.

10. The accused's trial was due to commence in this registry today, but has been stood over to tomorrow for reasons that are not relevant to this sentencing exercise. 

11. In the lead-up to that trial, Mr Macquarie, the accused's legal advisers were provided, as is required, with the Crown's brief of evidence.  Somehow, you obtained access to that brief of evidence.

12. You therefore knew that not only was Shirley to be a witness in the accused's trial, but that Ms X was also to be a witness. At this stage, I know nothing of the Crown's case against the accused, or what the defence case might be.

13. It does seem to me, however, that you might have been a potential defence witness.  There are matters of concern as to how you obtained access to the Crown brief, but that is not something I need to further address today.  It certainly will not be held against you for the purpose of today's sentence. 

14. In any event, you spent an extraordinary amount of time going through the Crown's brief of evidence - at first blush, to an obsessional extent. 

15. But ultimately, I think, as your counsel has submitted this afternoon, what appears to be obsessional is, more likely than not, a consequence of the psychological condition that you have been diagnosed with, viz of being on the autism spectrum. 

16. It is said by you that you prepared that documentation initially for the benefit of the accused's solicitor -who happens to be your solicitor - and an obvious conflict of interest is just below the surface.

17. It may be accepted, for my purposes today, that you did initially prepare that extensive documentation for the benefit of the solicitor. 

18. You have said that the solicitor, however, did not accept the general thrust of what you were suggesting.

19. I pause to observe that I cannot help but notice  the manner in which the documents (to which I shall later refer) were drafted.  On their face, they were not drafted as notes to a solicitor.  On their face, they were drafted directly to the intended objects of your intimidation. Whether you amended the documents after the solicitor rejected them or not, I do not know. 

20. Ultimately, however, you approached Ms X at her place of work on 6 March 2018 and you handed over two thoroughly disgraceful documents. And, when you did, it was in your contemplation that she might show those documents to Shirley. 

21. That was not your only effort. Three days later (on 9 March 2018) Ms X received two more documents from you, this time delivered to her home.

22. In this context, you had taken advantage of the fact that her address had been improperly contained within the brief of evidence. 

23. Four days later (on 13 March 2018) Ms X received yet another letter from you, attached to which was a draft media release and yet more disgraceful threats. 

24. You used a variety of threats to Ms X and - indirectly - to Shirley: financial; emotional; and threatening to unleash the media.

25. Whilst it is true you did not threaten physical violence, you threatened emotionally what could possibly be even worse.  You threatened to destroy her business.  You threatened to destroy her life.  You threatened to take that child away from her. 

26. In one of the documents you prepared, Mr Macquarie (which I drew to your attention on Friday), there was clearly a most reprehensible passage that you, of all people, with your insight into suicide, ought to have understood:

"Unless you tell her that you will accept full responsibility and will shield her from any blame or publicity, she could commit suicide out of shame or embarrassment, especially in her already fragile mental state.  Dolly of Akubra Hats is proof of that."

27. Invoking the image of that poor girl, who killed herself from bullying, in this document, knowing that there was a probability that that another young girl, (Shirley) might read it, was a truly reprehensible thing to have done.  What you did was truly wicked. 

28. It was wicked, not only to the immediate victims (the people who have the right to have their cases heard in court, the people who have the right to make complaints and for their complaints to be taken seriously and acted on) but you have attacked the administration of justice at its very heart, Mr Macquarie.

29. There is no more reprehensible example of attempting to pervert the course of justice than to intimidate, through a variety of means, young witnesses in child sexual assault cases. 

30. It has been submitted by both the Crown and your counsel that the objective seriousness for the offending is mid-range. 

31. In my view, however, it is slightly above the mid-range for an offence of its kind. 

32. You were born in 1957. 

33. You have had a long and useful working life. 

34. Not only have you been a contributing member of society through your employment, you have, as your counsel has rightly said, engaged in many commendable charitable works. But, as your counsel has also said, those charitable works also are reflective of your underlying condition of autism because there is an element of obsessiveness about what you have been doing in that respect.

35. I accept that you have chronic complex post‑traumatic stress disorder, persistent depressive disorder, chronic borderline personality disorder and adult autism spectrum disorder - as set out in the psychological report of Mr Hudd.  I accept that, to an extent, that latter condition has had some effect on your offending behaviour for which you are to be sentenced today.

36. To an extent, therefore, general and specific deterrence are of reduced significance. However, they remain relevant considerations.

37. Your psychological condition does not provide you with a defence, although it may explain (to an extent) the thoroughness of what you did.  It does not explain, however, the viciousness underlying your threats. 

38. You have expressed remorse.  But your expressions of remorse must be understood in the context of your psychological condition.  I am not suggesting, Mr Macquarie, that you were not telling me the truth.  It is just that expressions of remorse with your condition make them less fulsome.

39. I think your prospects of re-offending are very unlikely.

40. You have effectively no criminal history of any significance; and you are entitled to the leniency which, in appropriate circumstances, can be extended to first offenders. 

41. No sentence other than a period of imprisonment is appropriate. 

42. You have pleaded guilty at an early opportunity, and I intend to give you the full discount of 25%.

43. Except for your plea of guilty, Mr Macquarie, I would have sentenced you to a term of imprisonment of 4 years. Because of that plea, the term of imprisonment will be 3 years. 

44. It has been submitted on your behalf that I should vary the ratio of the non-parole period to the head sentence by making a finding of special circumstances. If I do not make a finding of special circumstances, the non‑parole period must be 75% of the head sentence. 

45. Your counsel has pointed to the fact that this is your first time in custody.  As the Court of Criminal Appeal has said that, in and of itself, is not a sufficient basis for a finding of special circumstances.

46. Your counsel has pointed to the fact that you need ongoing psychological assistance and, therefore, will need a longer period on parole.  I do not think that that is appropriate in your case.  Whenever you are released, I am sure that you will continue to seek assistance without the necessary involvement of probation and parole.

47. Your counsel has also submitted that, because of your psychological condition, imprisonment will be harsher for you than for others. I accept that submission. 

48. Taking the three factors I have just referred to together, I make a finding of special circumstances to reduce the ratio of the head sentence to the non‑parole period.

49. I therefore fix a non-parole period, Mr Macquarie, of 1 year and 6 months, to date from today, 29 July 2019, and which will expire on 28 January 2021.  The balance on parole is also 1 year and 6 months, to date from 29 January 2021 and which will expire on 28 January 2022. 

50. Except for your exceptional subjective circumstances, Mr Macquarie, I would have imposed a significantly greater sentence for what you did in this case which, as I have said, was truly disgraceful. 

51. You will now go with the officers. Thank you.

Decision last updated: 20 January 2020