R v White (No 4)
[2022] ACTSC 79
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v White (No 4) |
| Citation: | [2022] ACTSC 79 |
| Hearing Dates: | 19 April 2022 |
| Decision Date: | 19 April 2022 |
| Before: | Elkaim J |
| Decision: | See para [50] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – perjury |
| Legislation Cited: | Criminal Code 2002 (ACT) s 703 |
| Cases Cited: | R v Nguyen [2004] NSWCCA 332; 149 A Crim R 343 R v Wright; R v Edgerton [2021] ACTSC 12 |
| Parties: | The Queen (Crown) |
| Scott John White (Offender) | |
| Representation: | Counsel |
| A Williamson (Crown) J Purnell SC (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
| File Number: | SCC 188 of 2020 |
| ELKAIM J: |
1. On 29 November 2021 the offender came to trial before me and a jury, facing two counts of perjury in an indictment dated 8 October 2021. The jury returned a verdict of guilty on the second count.
2. The maximum penalty for committing perjury, contrary to s 703 of the Criminal Code 2002 (ACT), is 7 years imprisonment or $112,000 or both.
3. The jury could not agree on the first count. Because of earlier indications of disagreement, I discharged the jury in respect of this count without requiring any further deliberation.
4. Immediately after the discharge, the Crown indicated that it would not proceed again with Count 1.
5. Count 2 concerned evidence given in the Magistrates Court on 23 July 2015. This is a transcript of the relevant evidence:
You at a point in time commenced a sexual relationship with Ms Parkinson?.... That’s
correct.
In relation to that relationship did you use condoms?....No.
Are you certain in relation to that?....Yes.
How are you able to be so certain in relation…..?..... I had a vasectomy in 2007 and we’ve
never used condoms at all.
6. The offender had previously told a police officer (Mr Corcoran) that condoms had been used in his relationship with Ms Parkinson when they had engaged in anal sex.
7. Mr Corcoran had told the offender that this use of condoms was not relevant because it was related to events that had occurred sometime before the period of time being investigated.
8. In giving his evidence before the jury the offender conceded that his answers in the Magistrates Court were incorrect, but he defended his actions on the basis that he had not been reckless or had been answering the questions while harbouring under a mistake of fact. He referred to the following considerations as supporting his defence:
(a) Based upon the attitude that had been taken by Mr Corcoran as to relevance, he did not consider it relevant to include the historical use of condoms in his answer. (b) He believed that the questions he was being asked related only to penile- vaginal sex. (c) The vasectomy had actually been performed in 2009, not 2007. 9. The jury obviously, and appropriately, rejected these considerations as affecting the plain falsity of his evidence.
10. The background to the offending is important: I will adopt the description given by the Crown in the opening address to the jury:
You will hear that in 2015 the accused, Mr White was a New South Wales police officer based out of Queanbeyan Police Station. You will hear that on 23 July 2015 the accused's now wife, who at the time was his girlfriend, faced a criminal hearing in the ACT Magistrates Court where it was alleged that she had made false rape and domestic violence accusations against her former fiancé, a gentleman by the name of Mr Daniel Jones. Those accusations caused Mr Jones to be refused bail and spend a period of time in custody for offences which, on Ms Parkinson's own admission, Mr Jones never committed.
At her defence, Ms (Parkinson) - at her hearing, her defence was that the allegations she had made to police about Mr Jones were true, thus she was not lying and she was not guilty. Ultimately, however, Ms Jones did plead guilty to some of the charges. She did not appeal and her matter is now finalised. You will hear that the accused, Mr White, was called as a witness during those proceedings. That is to say, during the prosecution of Ms Sarah Jane Parkinson. You will receive the testimony, the evidence, that Mr White gave during those proceedings.
11. The perjured evidence was given by the offender during the proceedings against Ms Parkinson. It is important to note that when the offender gave the evidence he was in a serious relationship with Ms Parkinson (they are now married) and he was effectively being asked to give evidence against his partner. This no doubt placed him in a very uncomfortable position and one in which he would have had a natural aversion to
giving any evidence which might have imperilled Ms Parkinson’s defence. There is
also no evidence that the offender did not believe that Ms Parkinson’s accusations
were not true.
12. On the other hand, he was a police officer who was acutely aware of the need to give truthful evidence. In his evidence before the jury he said:
Now, at any stage during your evidence on the 23rd, did you think along these lines, 'Oh, that answer may or may not be right but I'll give it anyway,' or - - -?---No.
- - - that sort of process?---No, I thought carefully about my answers and gave my answers
as what I believe to be true.13. If he thought carefully about his answers and said what he believed to be true he must have known he was giving false evidence. If he was endeavouring to colour his evidence to a different effect, that attempt was rejected.
14. As to him being a police officer the Crown reminded me that this should be considered an aggravating factor. Although relating to a different offence Spigelman CJ in R v Nguyen [2004] NSWCCA 332; 149 A Crim R 343 said:
The fact that the offence is perverting the course of justice is committed by a person directly involved in the administration of justice is a relevant consideration, even if the conduct does
not occur in the course of that person’s official duty.
15. The subject of condoms was relevant because their use had featured in the false account given by Ms Parkinson in her pursuit of her accusations against Mr Jones. The offender was aware of that relevance.
This fact, together with the offender’s knowledge, derived from being a police officer,
of the utmost importance of giving truthful evidence affect the objective seriousness of the offending. On the other hand the false evidence concerned only one discrete matter contained within a good deal of other evidence and, ultimately, did not have any impact on the guilt of Ms Parkinson.
There is a victim impact statement from Mrs Michelle Jones, who is Mr Daniel Jones’
mother. The victim impact statements from Mr Daniel Jones and his father were
originally tendered, but later withdrawn after some discussion as to their contents.18. In her victim impact statement Mrs Jones talks about the significant financial costs that have attended the legal proceedings which her son has endured. She has also suffered personally because her employment has been adversely affected to the extent that her career in law enforcement has been curtailed. The legal proceedings against her son have caused her stress and anxiety requiring treatment and antidepressant medication.
Mrs Jones says that her “family has literally been torn apart from what was once a
cohesive and trusting family unit, to one that is now physically distant and without trust
of anyone other than family members or close friends”. She continues:
it is evident that when dealing with ACT and NSW Policing, including White and his cohorts
(whom she names), there is little for the Jones family to trust.
20. Mrs Jones says:
White has actively and purposefully aided and abetted Parkinson, committing perjury in ACT court hearings and doing so with full knowledge of the consequences of his actions. The result being that my son, Daniel, was falsely jailed for months, lost his career, lost his reputation, lost his home, lost his freedom and at one stage, contemplated taking his own
life. White’s actions are a contributing factor in Daniel being wrongfully jailed.
As a result of White lying and aiding Parkinson, I have had my home searched, experienced numerous instances of police intimidation, seen my eldest son wrongfully incarcerated, lost my home, career and family unit, lost my savings, being wrongfully accused of theft, been fingerprinted, physically searched, and followed by police.
21. It is important that I take into account the victim impact statement. However it is equally important that I do not sentence the offender for anything more than the offence of which he has been convicted. This is the perjury in relation to one matter within the whole of the conduct which was so unfairly directed against Mr Jones.
22. As observed by the Crown in written submissions:
The Crown accepts that parts of Ms Jones’s victim impact statement would not be admissible
if the rules of evidence were to be strictly applied. In particular, the Crown accepts that the
Jones’ residence was not searched by police as a result of the offender’s perjury. Rather, it
was searched as a result of Ms Parkinson’s offending; the perjury did not occur until over a
year later.
Arguably the Crown’s concession should have gone further. The context of the perjury
is obviously important. The context here relates to the offender’s endeavours to protect
his partner in the legal proceedings against her. As noted above, he may well have even believed that she was innocent. He is not to be sentenced for the whole of a conspiracy which resulted in Daniel Jones being incarcerated. Having said that, I do accept that the entire saga involving Mr Daniel Jones was devastating for him and for his family.
24. I stress however, as stated above, that I am only sentencing the offender for the one count of perjury.
25. I assess the objective seriousness of the offending as below medium.
26. The offender was born in 1982 in Wagga Wagga. He was an only child. His family came to Canberra in 1987. He had the benefit of a supportive family.
27. The offender has been married twice. He has three children from the first marriage, with whom he is in regular contact. His current relationship, with Ms Parkinson, began about eight years ago and is stable.
28. After leaving school in Year 11, the offender took on an apprenticeship as a butcher. After some years in that trade he joined the New South Wales police force. He is in good physical health but has understandably been suffering from anxiety. He has been seeing a psychologist.
29. The authors of the pre-sentence report say there is a low risk of general re-offending.
30. During the course of the trial a number of persons gave evidence about the character of the offender. The purpose of that evidence was to enable the offender to raise his good character in defence of the charges. Nevertheless, and notwithstanding the finding of guilt on Count 2, the character evidence remains relevant to the sentencing proceedings.
31. I will quote from some of the character evidence: Sgt Bailey, a member of the New
South Wales police force who was the offender’s superior officer and worked closely
with him, said:
What do you say to the jury about his character and reputation? --- I couldn't fault him. He is honest, reliable, trustworthy, yes. I'm surprised that I'm here today.
Did you check his work, as the boss? --- Yes, I did.
And how did you find his work in terms of the way he discharged it? --- He was always committed, did his work to a high standard. Everything was done timely. Yes, I really couldn't fault anything in his work, in any of his work, whatever, that he any of his paperwork, any of his correspondence, court matters.
Did you have opportunity to assess his honesty? --- Like I said, we lived with each other at times, whatever, and you know there's probably opportunities for people to do things if they really wanted, but there was no issues at all with Scott's honesty.
Were there occasions that you had to call on him on short notice to carry out duties that you requested him to do? --- Yes. Like I said, part of our role was if there is a spate of break and enters, or something taking place, or a crime, a particular type of crime, and they want someone to go in in plain clothes or to be there after hours, you know, we can't wait and roster for it, so we have to change the roster at short notice and Scott was really obliging in that regard. He never let us down. You know, he always made himself available.
And was there on occasion that something happened with two severely autistic children that you recall, in his favour? --- Yes. He and another officer got called because a couple of autistic kids, the mother was having troubles getting them in the car and I'm not sure of the full circumstances of it, but I do know that Scott and the other office attended and they were taken it literally shocked both of them, I think, to see what this woman had endured to the point that they both went and decided that they needed to do more than just help her on that particular day and they actually went ahead and organised a sausage sizzled and yes, the funds raised they donated. And I know we got a cookie jar back from the kids as a result. So yes, no, they did really well.
The offender’s mother, Mrs Linda White, gave this evidence:
What do you say about your observations in relation to his character and reputation? --- Look, Scott is a fabulous son. We are quite close because he is an only child and he, you know, left home at around 18 years of age to get married and we have had close contact with him ever since. He is a great support for his father and I. In the last four years my husband has been on the heart transplant list and he has been with us through that journey. He is part of our support team, so hugely supportive. He's a great dad. We have three grandchildren. One of them lives in Canberra and has been living with us up until fairly recently while she attends university. He has had a lot to do with his children even though him and his first wife are divorced and he's just a great dad and they love him greatly. He is a person who has always been respectful, he is very, very good with disabled people. His best friend at school was in a wheelchair. He had muscular dystrophy. He was the student who used to go in the wheelchair taxi to school with him every day and support him at the school. Another friend he had had a mental illness and committed suicide when he was 16. Hung himself in the paddock that wasn't far from our house. Again, he was the support person. He was the person that the police got to go out and look for the boy when he came out of the mental health institution and went missing. So he's always been a caring person. We always knew from a young age that he would go into a career that involved community service because he was that sort of person. Great with his grandparents, great with children, great with people with disabilities. So I'm very, very proud of my son. He has always been honest. He is honest with us. We know a lot about what's happened with his life, given he went through a divorce and so on. He came to us when he was divorced. We helped him with the children when he had been visiting every second weekend and all those sorts of things in those early days. The children are grown up now. One of them is almost 20 and one's 17 and one 13 but nevertheless, you know, he has been the sort of person that a mum and dad would be very proud of.
Ms Taylor Saddler, the offender’s cousin said:
Scott’s very trustworthy and honest and reliable and very good to me and my children.
Ms Jennifer Eijkman, the offender’s aunt said:
In your observations of him, what can you say about his character and reputation? --- Very loving, caring, fabulous nephew, wonderful father, he's very close to his children, who I have also met subsequently moving back from New Zealand. Honest with everything I've ever had to deal with him, fabulous police officer. He used to talk about his work in the force as much as he could.
35. The impression that I have formed is that the offender was a good police officer, a good family man and a decent and contributing member to society. I am further
satisfied that the act of perjury was a ’one-off’ incident. These conclusions, together
with other indications of good character such as a lack of any criminal convictions,
combine to create a significant cause for leniency.
The offender was suspended from duty from 8 October 2019. This was for “serious
misconduct which will likely result in removal under S.181d”. An investigation report
specifically relates the misconduct to the act of perjury for which the offender was found
guilty.37. Although the offender was initially suspended on full pay, since the conviction, he has been dismissed from his employment.
38. As to his present condition the offender relies on a report of Ms Madeleine Godber, a clinical psychologist. The report is dated 21 January 2022. She talks about his continuing treatment to manage his anxiety. She states:
Scott has made very pleasing progress towards his treatment goals, demonstrated both behaviourally and on clinical outcome measures. Scott reports feeling more calm and content then he has in years, despite ongoing stress. Scott has engaged in value guided behavioural activation and sites regular exercise, playing the guitar, spending time with his children and regular meditation practices as coping mechanisms which help him to regulate anxiety. Scott reports both reduced anxiety and increased confidence in his ability to manage anxiety as it arises. At this time, Scott does not meet diagnostic criteria for any DSM-5 mental disorder.
The Crown’s attitude is that the offender should receive a full-time prison sentence.
Predicting that a submission would be made concerning the difficulties the offender would face in prison (as a former police officer), the Crown wrote to the Commissioner for ACT Corrective Services. In summary the Commissioner responded that the
offender’s occupation as a police officer would make little difference to his
incarceration. If there was any suggestion of harm to him, he would be segregated and
would have the same recreational and other benefits available to all other prisoners.40. The offender gave evidence that he had been involved in the investigation of three current residents of the AMC, two of whom had committed particularly violent offences. Only one of these persons seemed to be of potential danger to the offender.
41. Although there is no evidence to the contrary I found the Commissioner’s response to
be difficult to accept. I have no doubt that an effective prison grapevine would soon distribute the fact that one of the inmates was a former police officer with the possibility of consequences to follow.
42. I am required to take note of sentencing practices in other cases both in the ACT and more generally. Not surprisingly, neither party has been able to point to any particular case with very similar facts.
43. Because the offender was a police officer, as pointed out by the Crown, the offending takes on a seriousness which might otherwise not have existed. But, as pointed out above, the offender was otherwise a very good police officer serving the community in limiting the occasioning of serious crimes.
44. I think a term of imprisonment is an obligatory product of the nature of the offending. But I think the reasons for leniency that I have set out above take away the need for full-time custody.
45. I do note here that the offender has not expressed any remorse. This is a product of his continued belief in his innocence. He has lodged an appeal.
46. My initial conclusion was that an Intensive Correction Order was appropriate. However the pre-sentence report has pointed out that such an order cannot be transferred to New South Wales where the offender resides.
47. The same dilemma confronted Murrell CJ in R v Wright; R v Edgerton [2021] ACTSC 12. Her Honour went on, as a viable alternative, to impose an immediately suspended sentence combined with a Good Behaviour Order.
48. I intend to follow this course although I think that the suggested term of imprisonment made by Mr Purnell (of 12 months) is not sufficient.
49. I make the following orders:
(a) The offender is sentenced to a term of imprisonment of 18 months to commence today and end on 18 October 2023; (b) The above sentence is suspended with immediate effect and on condition that the offender enter into a Good Behaviour Order for a period of 24 months from 19 April 2022 to 18 April 2024 with core conditions. I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim
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