R v Moore

[2012] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Moore [2012] NSWCCA 3
Hearing dates:	8 December 2011
Decision date:	06 February 2012
Before:	Bathurst CJ at 1 Simpson J at 2 Adamson J at 42
Decision:	Crown appeal dismissed.
Catchwords:	CRIMINAL LAW - crown appeal - sentencing - plea of guilty - principle of totality - non-parole period - period of parole - s 5D Criminal Appeal Act 1912 - s 319 Crimes Act 1900 - s 44 Crimes (Sentencing Procedure) Act 1999 - s 50 Crimes (Sentencing Procedure) Act 1999 - s 51 Crimes (Sentencing Procedure) Act 1999 - intent to pervert the course of justice - driving whilst disqualified - variation of bail - letter of forgery
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category:	Principal judgment
Parties:	Regina (Appellant) David Maxwell Moore (Respondent)
Representation:	Counsel V Lydiard (Appellant) D Barron (Solicitor) (Respondent) Solicitor S Kavanagh (Appellant) Barron Law (Respondent)
File Number(s):	11/52972
Decision under appeal	Jurisdiction: 9101 Citation: N/A Date of Decision: 2011-06-15 00:00:00 Before: English DCJ File Number(s): 11/52972

Judgment

1. BATHURST CJ: For the reasons given by Simpson J, I join in the order dismissing the Crown appeal in these proceedings.

1. SIMPSON J: Pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the DPP") appealed against the asserted manifest inadequacy of a sentence imposed on the respondent in the District Court at Wagga Wagga on 15 June 2011, following his plea of guilty to a charge, brought under s 319 of the Crimes Act 1900, of doing an act with intent to pervert the course of justice. That section provides a maximum penalty of imprisonment for 14 years. English DCJ sentenced the respondent to imprisonment for 18 months, commencing on 16 June 2011 and expiring on 15 December 2012, with a non-parole period of 6 months expiring on 15 December 2011. Her Honour did not make an order, under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") directing the release of the respondent at the expiration of the non-parole period. She did, as she was entitled to do pursuant to s 51 of the Sentencing Procedure Act , specify the conditions on which he will be released.

1. The offence was committed over a period commencing on 1 February 2011, and ending on 2 February 2011.

1. At the conclusion of the hearing of the appeal on 8 December 2011, the Court made an order dismissing the appeal, but reserving reasons. These are my reasons for joining in that order.

The facts

1. On 27 January 2011 the respondent was arrested and charged with driving whilst disqualified. That offence was committed on 25 January. Subsequently, he was charged with three additional offences of the same kind, two committed on 27 January and the last on 1 February.

1. On 28 January the respondent was released on conditional bail, ordered in the Local Court in Wagga Wagga. One of the conditions on which bail was granted required the respondent to report to the Officer in Charge of Police in Wagga Wagga, on a daily basis.

1. The matters were then listed in the Local Court for 2 February 2011 for mention.

1. The respondent wished to travel to Orange on the following weekend in order to take part in a course that would improve his employment prospects. He was not able to do that, without breach of the then current bail conditions. He accordingly sought a variation of bail, the variation being merely to allow him to report to the Officer in Charge of Police at Orange, rather than in Wagga Wagga. In support of his application, the applicant produced, through his legal representative, a letter purportedly written on behalf of his then employer, R M Watt Earthmoving Pty Limited. The letter was typewritten, and dated 1 February 2011. It contained a request for a change of the bail condition in order to allow the respondent "to attend a vital training course in Orange, NSW." It said that the course was important as it would enable the company and the respondent "to move forward". It added that no other employee had "the skill base" of the respondent. It contained a final paragraph complimenting the respondent on his conduct since he had recommenced medication, and described him as:

"... a model employee ... more attentive and hardworking than ever ... an invaluable asset to my company."

It purported to have been signed by "R Watts".

1. The letter was a forgery. It had been typed on a computer by the respondent's son's girlfriend. The name of the employer (Robert Watt) was misspelled. By the time the letter was produced on 2 February, police were already aware, and had confirmed with the proprietors of the company, that neither had signed the document. The respondent withdrew the application for variation for bail. The respondent was arrested and charged on 17 February 2011. He has remained in custody since that date.

1. For this offence, English DCJ imposed the sentence I have set out above.

1. That sentence has to be seen in the context of the sentences imposed in respect of the four counts of driving whilst disqualified. They were dealt with in the Local Court on 12 April 2011. In respect of the offence of 25 January, the magistrate imposed a sentence of imprisonment for 12 months commencing on 16 February 2011, and expiring on 15 February 2012, with a non-parole period of 7 months expiring on 15 September 2011. In respect of the subsequent three counts, he/she imposed concurrent sentences of imprisonment for 15 months, commencing 15 September 2011 and expiring on 14 September 2012, with a non-parole period of 9 months, expiring on 14 June 2012.

1. The respondent appealed against those sentences. The appeal came on for hearing before English DCJ on the same day as the proceedings on sentence for the offence of perverting the course of justice. Her Honour dealt with the appeal first. She upheld the appeal and substituted the following sentences:

Count 1: imprisonment for 12 months, commencing on 16 February 2011 and expiring on 15 February 2012, with a non-parole period of 6 months, expiring on 16 August 2012;

Counts 2 and 3: imprisonment for 12 months, commencing on 16 February 2011 and expiring on 15 March 2012, with a non-parole period of 6 months, expiring on 15 September 2011;

Count 4: imprisonment for 16 months, commencing on 16 April 2011 and expiring on 15 August 2012, with a non-parole period of 6 months, expiring on 15 December 2011.

1. The aggregate sentence thus imposed was of imprisonment for 18 months, commencing on 16 February 2011, and expiring on 15 August 2012, with a non-parole period of 10 months, expiring on 15 December 2011.

1. The non-parole period in respect of the present offence was therefore entirely subsumed within the non-parole period of the driving offences. The head sentence extended the previously-imposed sentence by 4 months.

The respondent's personal circumstances

1. Evidence of the respondent's personal circumstances was put before the sentencing judge by way of a Pre-Sentence Report and documents provided by Justice Health. In addition, the respondent gave evidence.

1. The respondent was born in December 1970 and was 40 at the time he committed this offence. He has an extremely lengthy criminal history, encompassing three states and involving significant matters of dishonesty, as well as other offences.

1. The author of the Pre-Sentence Report said that the respondent had had a "difficult" childhood, having been adopted by a father who had significant alcohol issues and physically abused him. At about the age of seven he was diagnosed as suffering from Attention Deficit Disorder, but no treatment appears to have been provided to him. The author reported that the respondent had said that he had been diagnosed as suffering from bipolar disorder and of poor mental health. There does not appear to have been any confirmation of this diagnosis. The author also said that the respondent had been "non-medication compliant" at the time of the offences. He was said, at the time of the report (just before sentencing) to have been prescribed antidepressant medication.

1. The respondent had had employment, principally as a mechanic, but at the time of the offences was employed as a truck driver.

1. He has two older children from a defunct relationship, and two younger children from a current relationship, which has been in existence for about seven years and is, apparently, stable. The Justice Health document also reported that the respondent claimed to have been diagnosed as suffering bipolar disorder while in custody, but added that his medical records did not confirm that. However, the report later said he was receiving treatment by his general practitioner for that disorder. The author (a "Clinical Nurse Consultant (Mental Health)") reported the "clinical impression" that the respondent has some borderline and anti-social personality disorder traits. A letter from a general practitioner was tendered (the authenticity of which was accepted by the Crown) which recorded that the respondent was "currently on epilim ... and avanza ... for mood disorder (bipolar affective disorder) and anger disorder.

The respondent's evidence

1. The respondent gave evidence that he is, effectively, functionally illiterate and innumerate. That was why he had the forged letter written by an assistant. He gave evidence that, at age 18, when in custody, he had been raped. Although he reported the rape, no action was taken. He said that the rapist was currently in the same prison complex as that in which the respondent was being held.

1. He had experienced the death by overdose of a cellmate, an event by which he said he was affected painfully, and "just not coping".

1. Although he is not held in protection, he has some restriction of movement. This was because he had rendered some assistance to police in respect of other offences (not his own) in respect of which evidence he had received threats.

1. The respondent said that his youngest child had been born while he was incarcerated, and he had only seen her twice.

The Remarks on Sentence

1. The sentencing judge recounted the facts of the offence in a manner that has not attracted criticism. She also recounted the evidence of the respondent's personal circumstances, making reference to the medication to which he is now subject.

1. With respect to the gravity of the offence, she said:

"The offence for which he is facing sentence is a serious offence. It is an offence attracting a maximum penalty of 14 years imprisonment in recognition of the importance of protecting the integrity of our criminal justice system."

However, she found that the particular offence was one:

"... falling towards the lower end of the scale constructed for like offences ... because it did not involve the threatening of a witness or the interference with a juror or judicial officer. It was an attempt by him to influence the outcome of a bail application in his favour, something which probably could have been done without the need to go to the lengths that he did. It was an act, however, which clearly involved premeditation and planning and worse still the involvement of an otherwise innocent person to produce the document for him. It is an offence warranting a penalty to reflect the need for general deterrence, not only to this offender, but to deter others who might be of a like mind."

1. In the context of general deterrence, she considered the respondent to be:

"... a somewhat inappropriate medium ... having regard to the bipolar affective disorder from he now suffers."

1. She found that the respondent's time in custody would be "more onerous", but did not explain on what basis she made this finding. She considered that only a sentence of full time custody would satisfy the requirements of general and specific deterrence.

1. She considered that the respondent was remorseful and contrite, but nevertheless also considered his prospects of rehabilitation to be "guarded". This was in specific reference to his "blatant disregard for court orders in the past", particularly in respect of driving. (Given the respondent's history, the finding is hardly surprising.)

1. Her Honour found special circumstances, pursuant to s 44 of the Sentencing Procedure Act , warranting departure from the ratio there stated between the head sentence and the non-parole period. In accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, in respect of the plea of guilty she allowed a reduction of 25% in the sentence which she otherwise would have imposed.

1. She held that there must necessarily be a partial accumulation of sentence upon the sentences imposed in respect of the driving offences.

The grounds of the application

1. The grounds of the application were pleaded as follows:

"Ground 1: The sentencing judge erred in imposing a non-parole period for the Pervert the Course of Justice offence which is wholly concurrent with the sentences she imposed in relation to the Driving Whilst Disqualified offences.

Ground 2: The sentencing judge erred in failing to consider the principles of totality when determining the commencement date for the sentence imposed for the Pervert the Course of Justice offence.

Ground 3: The sentence imposed is manifestly inadequate."

Grounds 1 and 2

1. When regard is had to the argument advanced on behalf of the DPP, it seems to me that these two grounds, at least, overlap. Indeed, it was accepted on the appeal that all grounds, in reality, are based upon the same single proposition. The DPP expressly disclaims any contention that a sentence of 18 months with a non-parole period of 6 months for this offence was in itself manifestly inadequate. The complaint is directed towards the total concurrence of the non-parole period in respect of this sentence, and the non-parole periods imposed in respect of the drive while disqualified offences. In those circumstances, the DPP argued, no real (additional) penalty was imposed in respect of a very serious offence.

1. That the offence of perverting the course of justice is serious cannot be doubted. So much is self-evident, if from nothing else, from the maximum penalty provided.

1. The need to protect the integrity of the criminal justice system is recognised. Courts are entitled to rely upon material provided to them by legal practitioners, who, in turn, are entitled to rely upon the bona fides of the material provided to them by their clients.

1. This offence was, however, at the lower end of the range of offences of its type. The purpose for which it was committed was to enable the respondent to acquire some additional vocational qualifications, presumably upon the understanding that he would, when the drive while disqualified offences were dealt with, be deprived of his driving licence for a very considerable time. The purpose was one which, in any event, (as her Honour observed) he may have been able to achieve legitimately. I do not suggest that that circumstance validates the method by which it was sought to be achieved. But when consideration is given to the other purposes for which an offence of this kind is sometimes committed - for example, unwarranted acquittal on a serious charge - this offence may be seen in its proper perspective on the scale of objective gravity.

1. I am, nevertheless, of the view that some additional penalty was called for. The offence was quite separate and distinct from the drive while disqualified offence.

1. I have concluded, however, that the argument of the DPP focuses too narrowly upon the non-parole period. In fact, the head sentence does contain within it some accumulation, of 4 months. That cannot be overlooked.

1. Because of the length of the sentences imposed, the respondent will be entitled to release at the expiration of the non-parole period: Sentencing Procedure Act, s 50. However, should he fail to comply with the strict conditions of parole specified, he will return to prison, and serve the balance of the term of the sentence, or such part thereof as the Parole Board may determine. That, in my opinion, is a significant factor in itself. Moreover, it must be borne in mind that a period of parole is in itself a sentence. It is wrong to say that the respondent was sentenced to no additional penalty in respect of the pervert the course of justice offence.

1. I accept that the sentencing judge may have imposed a sentence in which a part of the non-parole period was exclusively referrable to the pervert the course of justice offence. However, in the circumstances of this case, I am not satisfied that no other course was open to her.

1. I should make brief reference to the second ground of appeal, in which the issue of totality is raised. I am not satisfied that totality required any additional penalty to that which was imposed. The respondent is serving a term of imprisonment made up of a head sentence of 1 year and 10 months, with a non-parole period of 10 months. That is a significant term of imprisonment.

1. For these reasons I joined in the order dismissing the Crown appeal.

1. ADAMSON J: I agree with Simpson J.

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Decision last updated: 14 February 2012