Zotos v The Queen

[2014] VSCA 324

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0200

SPIRO ZOTOS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 December 2014
DATE OF JUDGMENT:	10 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 324
JUDGMENT APPEALED FROM:	R v Zotos, [2014] VCC 1291 (Judge Cannon)

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CRIMINAL LAW — Sentence – Application for leave to appeal — Applicant pleaded guilty to attempting to pervert the course of justice — Forged character references provided to County Court on appeal from Magistrates’ Court — Whether sentence of 4 years’ imprisonment manifestly excessive – Application granted —Appeal allowed — Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Mr R Gibson	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

1. I have read the judgment of Priest JA. I entirely agree with his Honour’s disposition of this appeal, and the sentence he proposes to substitute for that of the Court below.

PRIEST JA:

Introduction

1. On 16 August 2014, following a plea of guilty, the applicant was sentenced to be imprisoned for four (4) years on a charge of attempting to pervert the course of justice.  In circumstances that I will later explain,[1] 10 months of another sentence of imprisonment was ordered to be served cumulatively upon this sentence, leading in essence to a total effective sentence of four (4) years and 10 months’ imprisonment, upon which the judge fixed a non-parole period of three (3) years and six (6) months’ imprisonment.

   [1]See below [4]–[15].

1. The applicant seeks leave to appeal against sentence on the following ground:

1.   In all the circumstances:

(a) the sentence imposed on the charge on indictment of attempting to pervert the course of justice;

(b) the order for cumulation; and

(c) the non-parole fixed;

are manifestly excessive.

1. For the reasons that follow, I would grant the application for leave to appeal, allow the appeal and sentence the applicant as later set out.

Background

1. The applicant’s attempt to pervert the course of justice arose out of an appeal by the applicant to the County Court, the appeal arising from sentences imposed upon him in the Magistrates’ Court.

1. On 16 May 2013, on three charges of trafficking in a drug of dependence (charges 2, 4 and 5);  one charge of being a prohibited person in possession of an unregistered firearm (charge 9);  and one charge of dealing with property reasonably suspected of being the proceeds of crime (charge 10);  the Magistrates’ Court sentenced the applicant to be imprisoned for an aggregate period of two (2) years, upon which a non-parole period of 16 months was fixed.  The applicant sought to appeal to the County Court against that sentence.[2]

   [2]See Criminal Procedure Act 2009, s 254; County Court Act 1958, s 53A.

1. The appeal came on for hearing in the County Court on 11 December 2013.  In contemplation that they would be used on the appeal, two purported character references were provided to the judge’s associate by the applicant’s legal advisors.  Although the references were not at that stage tendered, it was intended that in due course that would occur.  As it transpired, the hearing of the appeal was adjourned to 17 December 2013, so that a psychologist who had provided a report might attend and give evidence.

1. One of the two supposed character references, bearing the date 4 December 2013, purported to be signed by Joseph Mareti  from the ‘Supa IGA Deer Park’, and was on Supa IGA Deer Park letterhead.  The second reference, bearing the date 9 December 2013, purported to be a character reference signed by John Veless from ‘The Victorian Yogurt Company’, and was also on company letterhead.

1. Being suspicious of the provenance of the references, on 12 December 2013  the informant spoke with the owner’s representative of Supa IGA Deer Park, who confirmed that the applicant had been employed at the store and that his employment had ceased in October 2013.  The owner’s representative told the informant that Joe Mareti was a casual employee of the store and was not permitted to provide references on IGA’s behalf.  When the informant spoke to Joe Mareti, he said that when the applicant left the store he had asked Mr Mareti to provide him with a reference.  Since Mr Mareti thought that the character reference was to be provided in his personal capacity as a friend, he agreed to provide it.  Later, the applicant showed him a ‘referee report’ on IGA letterhead, with his name — spelled incorrectly[3] — at its base.  The applicant told Mr Mareti that it was for court.  Mr Mareti neither prepared nor signed it.  Much of what was contained in the IGA ‘reference’ objectively was true.  It was accepted by the applicant, however, that contrary to what was contained in the ‘reference’, his job did not involve banking. Further, the bogus reference also purported to highly recommend the applicant in circumstances where he knew that those in control of the business would not have done so;  and it represented falsely that the signatory was authorised to provide it.  Significantly, not only did the applicant create the false reference, but he asked Mr Mareti to come to court so as to tell the judge and police that he had written it.  Although Mr Mareti did come to court on 17 December 2013, he ‘couldn’t go through with it because it’s all wrong.’

   [3]His name was incorrectly spelled ‘Moretti’.

1. When the informant spoke to John Veless of The Victoria Yoghurt Company, Mr Veless confirmed that the applicant was then an employee.  Mr Veless had, however, neither prepared nor signed the ‘character reference’ attributed to him, and he had not given permission to the applicant to use company letterhead.  Much of the content of the ‘reference’ was true (or, at least, not wrong), but it stated falsely that the applicant had been ‘poached’ by the company; that he was on a four year employment contract; and that he had secured for the company ‘over 100 new contracts’ and forty to fifty new clients.  Mr Veless signed a copy of the reference.  He repented that decision, however, and wanted the document returned. 

1. After the police had spoken to the two putative character referees, the applicant again approached both of them. 

1. When the hearing of the appeal resumed on 17 December 2013, defence counsel withdrew.  It was agreed that the bogus character references had been provided so as to be read by the judge, but that they had not formally been tendered.  The further hearing of the appeal was then again adjourned.  

1. On 23 December 2013, police arrested and interviewed the applicant.  It cannot be said that it was a frank interview.  

1. The applicant was charged with attempting to pervert the course of justice.  He indicated that he would plead guilty to that charge, and an indictment was filed in the County Court.

1. On 1 August 2014, both the applicant’s appeal to the County Court, and his plea on indictment to the charge of attempting to pervert the course of justice, were fixed for hearing in the County Court.[4]  Notwithstanding his lack of candour with police, the applicant pleaded guilty to the charge of attempting to pervert the course of justice; and the appeal from the Magistrates’ Court against sentence was effectively conducted as part of the same hearing. 

   [4]The judge was a judge other than the one who had dealt with the appeal on 11 and 17 December 2013.

1. The judge sentenced the applicant on 14 August 2014 according to the following table:

Charges and sentences on appeal to County Court (No AP—13—1109)
Charge	Offence	Sentence	Cumulation
2	Trafficking in a drug of dependence (methylamphetamine)[5]	Aggregate sentence of two (2) years’ imprisonment	10 months on charge 1 in Indictment
4	Trafficking in a drug of dependence (methylamphetamine)[6]
5	Trafficking in a drug of dependence (methylamphetamine)[7]
9	Prohibited person in possession of an unregistered firearm[8]
10	Dealing in property reasonably suspected of being the proceeds of crime[9]
Total effective sentence on appeal		2 years’ imprisonment
Charge on Indictment (No CR—14—00824)
1	Attempting to pervert the course of justice[10]	4 years’ imprisonment		Base
Total effective sentence — charge on Indictment and sentences on appeal		4 years and 10 months’ imprisonment
Non-parole period		3 years and 6 months’ imprisonment
Pre-sentence detention		104 days
Section 6AAA of the Sentencing Act 1991 declaration (both CR—14—00824 and AP—13—1109)		6 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months

[5]Drugs, Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is imprisonment for 15 years.

[6]Ibid.

[7]Ibid.

[8]Firearms Act 1996, s 5(1A). The maximum penalty is 1800 penalty units or imprisonment for 15 years.

[9]Crimes Act 1958, s 195. The maximum penalty is imprisonment for two years.

[10]Attempting to pervert the course of justice is an offence at common law. By s 320 of the Crimes Act 1958, the maximum penalty is 25 years’ imprisonment.

The relevance of the sentences imposed in the exercise of the County Court’s appellate jurisdiction

1. There is no jurisdiction in this Court to interfere with the aggregate sentence of two years’ imprisonment imposed by the County Court judge in the exercise of that Court’s appellate jurisdiction.[11]  However, should this Court be persuaded — as it is — that the sentence on the charge on the Indictment is manifestly excessive, and hence that the applicant must be sentenced afresh, the Court is permitted to adjust the order made for cumulation as between the sentence for the offence on the indictment and the sentence imposed on the appeal.  That must follow from Ludeman,[12] where it was held that an order for cumulation is a ‘sentence’, so that s 278 of the Criminal Procedure Act 2009 permits a challenge to such an order. Further, the term ‘sentence’ in s 278 embraces not only the individual sentence imposed and the consequential order made for cumulation, but also any non-parole period which is fixed.[13]  

   [11]See Criminal Procedure Act 2009, s 283.

   [12]Ludeman v The Queen (2010) 31 VR 606.

   [13]Ibid 614 [55] (Ashley and Redlich JJA). See also DPP v Jones (a Pseudonym) [2013] VSCA 330, [18] (Redlich and Priest JJA).

1. Indeed, a not dissimilar situation to that facing this Court arose in Saleem.[14]  In that case the Court was (as here) powerless to interfere with sentences that had been imposed by a judge of the County Court on appeal from the Magistrates’ Court, and did not reduce the sentence imposed by the same judge (at the same time) on a charge on Indictment.  In the result, however, the Court adjusted the order for cumulation between the two sentences — so as to effect a reduction of the actual time that the applicant might have to spend in custody — and imposed a new non-parole period.

   [14]Saleem v The Queen [2014] VSCA 190 (Redlich and Priest JJA) (‘Saleem’).

1. As I have said, the appeal relating to the sentence on the charge of attempting to pervert the course of justice must succeed and the applicant must be resentenced.  In resentencing the applicant, the Court must, of course, have regard to the principle of totality, so as to ensure that the aggregation of the sentences is a just and appropriate measure of the total criminality involved.[15]  Attention must accordingly be paid to the circumstances of the applicant’s offending which was the subject of the County Court appeal.  It is therefore necessary to briefly describe it.

   [15]Mill v The Queen (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J); Hudson v The Queen (2010) 30 VR 610, 625 [59] (Ashley, Redlich and Harper JJA).

1. In July 2010, police commenced investigations into illegal drug trafficking in the LaTrobe Valley, and identified the applicant and another man, Pepe, as major players.  The applicant and Pepe were partners in operating the Merton Rush Hotel in Morwell, which had been running at a loss.  Telephone intercepts confirmed that Pepe went to the hotel on a regular basis and supplied the applicant with methylamphetamine, cannabis and other drugs for distribution.  The applicant used the back office of the hotel to sell illicit drugs to friends and associates.

1. It is significant that the offending — which was the subject of charges 2, 4, 5, 9 and 10 — was committed whilst the applicant was on parole.

1. Three of the transactions which were the subject of charges 2, 4 and 5 (trafficking methylamphetamine) took place with an undercover member of police, ‘Robbie’.  A total of 11.4 grams of substance was analysed.  All items contained methylamphetamine.  Charge 2 related to trafficking in methylamphetamine between 1 November 2010 and 27 April 2011.  The quantity trafficked in total was 60 grams, 8 grams of which was sold to ‘Robbie’.  The balance was, in small amounts, sold to friends or associates.  Charge 4 related to the applicant trafficking in cannabis between 9 January 2011 and 23 April 2011.  On 28 April 2011, police found cannabis at the applicant’s home in Morwell — 310 grams in one bag;  10 grams in a snap lock bag; 17 grams in a second snap lock bag;  and 3 grams in a further snap lock bag.  Another small quantity was also located at the Merton Rush Hotel.  In his interview with police, the applicant admitted to trafficking two pounds of cannabis to Ben Cassar.  The prosecution and applicant agreed that the total amount of cannabis trafficked during the offending period was two pounds.

1. Charges 9 was that on 28 April 2011, the applicant was a prohibited person in possession of a firearm; and charge 10 was one of possession of cash reasonably suspected of being proceeds of crime.  Police executed a search warrant at the Merton Rush Hotel and, in a safe, located a black imitation semi-automatic pistol and $5,760 cash.  At the time, less than five years had lapsed since the Applicant had served a sentence of imprisonment for obtaining financial advantage by deception.[16]

   [16]See the definition of ‘prohibited person’ in s 3 of the Firearms Act 1996.

1. It might be said that the sentence imposed in the Magistrates’ Court — left undisturbed on appeal to the County Court — appears to be remarkably lenient.  Several observations must, however, be made of that fact.

1. First, had they been charged on Indictment, charges 2, 4, 5 and 9 would have attracted a maximum penalty each of 15 years’ imprisonment.  The Magistrate — and the judge on appeal[17] — could, however, impose no more than a sentence of two  years’ imprisonment on each individual charge,[18] and, cumulatively, no more than five years’ imprisonment.[19]^{, [20]}

   [17]Criminal Procedure Act 2009, s 256(1).

   [18]Sentencing Act 1991, s 113.

   [19]Sentencing Act 1991, s 113B.

   [20]Despite s 113 and 113B of the Sentencing Act 1991, however, the maximum penalty to which the judge was required to have regard remained 15 years’ imprisonment.  Those sections leave the statutory maximum untouched, but impose a jurisdictional limit.  They impose a maximum penalty, not by reference to the nature of the offence (or offences) and gravity in relation to other offences, but by reference to the status of the sentencing court: R v Duncan (2007) 172 A Crim R 111, 117 [20] (Nettle JA). See also Hansford v Judge Neesham [1995] 2 VR 233.

1. Secondly, the Director of Public Prosecutions could have appealed against the sentences imposed by the Magistrates’ Court had he considered such an appeal to be in the public interest.[21]  He did not do so.

   [21]Criminal Procedure Act 2009, s 257(1).

1. Thirdly, on the hearing of the applicant’s appeal, the judge raised the possibility of warning the applicant that she could increase the sentence imposed upon him by the Magistrates’ Court.[22]  Having heard the prosecution’s summary of the offending and some of the submissions in mitigation, however, she said specifically that she would not do so.

   [22]Criminal Procedure Act 2009, s 256(3).

1. Fourthly, it would, of course, have been improper for the sentencing judge to ramp up the sentence on the charge of attempting to pervert the course of justice so as to compensate for any perceived inadequacies in the sentence on appeal — I am not to be taken as suggesting that the judge did so — and it would be improper for this Court to do so. 

1. Bearing those observations steadily in mind, however, when this Court comes to consider the individual sentence to be imposed on the charge of attempting to pervert the course of justice;  the attendant order for cumulation; and the fixing of a new global non-parole period; the principle of totality requires the Court to assess these aspects as part of an evaluation of the applicant’s overall offending.  It would not be appropriate, however, to impose a disproportionate sentence on the charge, or order a disproportionate degree of cumulation, so as to make up for any discerned inadequacies in the sentence imposed on the appeal.

1. With these observations in mind, I turn to the submissions of the parties.

The applicant’s submissions on the appeal

1. The applicant’s counsel submitted — correctly — that this Court is without jurisdiction to interfere with the sentences imposed upon the applicant by the County Court on appeal from the Magistrates’ Court, but does have appellate jurisdiction in the case of the sentence for the offence on Indictment and the attendant order for cumulation.  He submitted that the sentence imposed on the charge of attempting to pervert the course of justice was manifestly excessive. 

1. The applicant’s ‘offending and plight’, so it was submitted, bore a ‘striking resemblance’ to the applicant and the offending in Saleem.[23]Although counsel acknowledged that sentences are not precedents, at the least Saleem represents a guide as to the sentence that the applicant could expect to attract.  In that case, so it was argued, in circumstances which are materially indistinguishable, the applicant had received a sentence of 14 months’ imprisonment on a charge of attempting to pervert the course of justice.  This Court described that sentence as ‘stern’,[24] but said that it could not ‘legitimately be said to be manifestly excessive’.[25]  But in the present case, the applicant received a sentence which is one month short of three-and-a-half times the sentence characterised as ‘stern’ in Saleem; and which ‘is equal to the sternest sentence permitted to stand for the offence of attempting to pervert the course of justice,[26] save perhaps one’.[27] 

   [23]Saleem, above n 13.

   [24]Ibid [34].

   [25]Ibid [43].

   [26]See Tognolini v The Queen (2011) 32 VR 104, 116, and the table of cases there set out; cf. Thymiopoulos v R [2012] VSCA 220, [18]–[20].

   [27]In Thymiopoulos, the Applicant had been sentenced to a total effective sentence of five years and three months’ imprisonment with a non-parole period of three years and three months on pleading guilty to one charge of conspiracy to pervert the course of justice and a summary charge of breach of an intervention order.

1. In the end, it was submitted the individual sentence imposed for the offence on indictment;  the order for cumulation made upon it; and the non-parole fixed; are manifestly excessive.

The respondent’s submissions on the appeal

1. The respondent conceded — correctly — that it is reasonably arguable that the sentence imposed on the charge on Indictment is manifestly excessive, but submitted that, whilst the sentence is at the upper end of the range, given the applicant’s circumstances and the aggravating features of the offending, the sentence imposed was reasonably open to the learned sentencing judge.  It was contended that the order for cumulation and the non-parole period were both ‘well within range’ having regard to the different episodes of offending and the applicant’s personal circumstances, including his limited prospects for rehabilitation and the need for significant weight to be given to denunciation, specific deterrence and the protection of the community.

1. The respondent’s counsel submitted that it was not correct to suggest that the circumstances of this case are materially indistinguishable from those of Saleem.  In that respect, the respondent pointed out that that in the instant case the applicant fell to be sentenced, not only for the making of the false references and providing them to the Court, but also for approaching both character witnesses after the appeal hearing was adjourned and attempting to have both witnesses represent that the references were authentic.  With regard to Mr Mareti, the applicant persuaded him to attend court in order to give evidence concerning the authenticity of the ‘reference’.  Significant aggravating factors were that the applicant’s conduct extend over a longer period of time than in Saleem, and involved the applicant directly attempting to persuade others to participate in the attempt to pervert the course of justice.  Moreover, in Saleem, the offender admitted the character references were false, both to the magistrate and then to police in the record of interview.  The applicant in the present case not only denied the allegations in the record of interview, but he attempted to have Mr Mareti come to court to swear falsely to having made the reference.  Further, the offender in Saleem pleaded guilty at the earliest opportunity, whereas the applicant pleaded guilty on the day of a contested committal (albeit prior to witnesses being called).  Additionally, the applicant’s prior convictions were significantly worse than in Saleem.  These factual distinctions drawn by the respondent’s counsel are, in my view, valid.

1. The respondent also drew attention to the fact that the relevant offences were committed whilst the applicant was on parole,[28] and, with respect to the charge on indictment, whilst the applicant was on bail.[29]  These were features of aggravation, and due weight needed to be given to the legislative policy relevant to these aspects.

   [28]Sentencing Act 1991, s 16(3B).

   [29]Sentencing Act 1991, s 16(3C).

1. Counsel for the respondent also drew attention to the fact that in Pantazis,[30] this Court did not interfere with a sentence of eight (8) years’ imprisonment for attempting to pervert the course of justice (although, it must be said, that was a particularly egregious example of the offence, constituted by orchestrating the flight from Australia of the principal of a major drug distribution network).

   [30]Pantazis v The Queen (2012) 268 FLR 121.

The applicant’s history and personal circumstances

1. It is necessary to say something of the applicant’s personal circumstances.

1. The applicant is 44 years of age.  His criminal history is appalling.  It was described aptly as ‘horrendous’ by the sentencing judge.  I do not think that I can much improve on the manner in which it has previously been described by other judges who, in recent times, have dealt with the applicant.  In 2008, when the applicant was aged 38 years (and before he attracted further convictions), in Zotos[31] — an appeal against sentence relating to multiple dishonesty and drug offences — Osborn AJA said of the applicant and his history to that point:[32]

   [31]R v Zotos [2008] VSCA 82 (‘Zotos’).           

   [32]Ibid [28]–[31].

The appellant was born on 17 January 1970, and is thus now 38 years of age.  He comes before the Court with some 130 prior convictions, and it is this history which is the essential basis justifying a sentence of the order imposed in the County Court.  In my view, that history demonstrates consistent and repeated fraudulent conduct which is such as to:

·demonstrate pervasive, continuing and serious dishonesty throughout the appellant’s adult life;

·demonstrate a serious need for specific deterrence;

·raise serious questions as to any realistic possibility of rehabilitation;

·raise significant issues of general deterrence;  and

·raise a real question as to the need to protect the community from his ongoing depredations.

I should add that the appellant’s criminal history is also such that I would have serious reluctance in accepting any uncorroborated statements made by him as to exculpatory matters.

The learned sentencing judge summarised the most relevant of the appellant’s prior convictions as follows:

… You were first before a Magistrates’ Court at Northcote in August 1987 when you were 17 years, on counts of burglary and theft.

You were again before a Magistrates’ Court on 14 March ’89 on counts of theft and failing to answer bail.

More relevantly, for current purposes, you were again before a Magistrates’ Court on 22 March 1990 on multiple counts of burglary, attempted burglary, obtaining financial advantages by deception, obtaining property by deception, theft, going equipped to steal, and other offences, and for the first time a term of imprisonment was imposed.  It was wholly suspended but by reason of subsequent offending the sentence was reinstated.

Notwithstanding that you were again before the Magistrates’ Court at Heidelberg on 9 August 1991 on no fewer than nine counts of obtaining property by deception, attempting to obtain property by deception, theft and two counts of failing to answer bail.  You were sentenced to terms of imprisonment.

In 1992 you were again before the Court on no fewer than 31 counts of obtaining property by deception, four counts of attempting to obtain property by deception, nine charges of obtaining a financial advantage by deception and driving a car whilst your licence was suspended.  You were sentenced to be imprisoned for a period of 16 months.

You were before the Court again in August 1994 on a count of being in possession of a regulated weapon.  It is unrelated to the principal counts presently before me but it is, rather surprisingly, a similar offence to one of the summary matters to which you have pleaded guilty.

In February 1995, you were again before the Magistrates’ Court on a count of obtaining property by deception and failing to answer bail.  You were sentenced to be imprisoned for 42 days on each charge suspended for 12 months. (And were fined).

In February 1995 you were before the Court on a count of attempted theft and other matters.

In December 1995, three counts of theft, four counts of obtaining property by deception, a count of making a copy of a false document, handling stolen goods and other counts.  You were sentenced to 12 months’ imprisonment with a minimum of four months to be served before being eligible for parole.

On 26 June 1996 on a count of obtaining property by deception, you were sentenced to 6 months wholly suspended, which sentence was subsequently reinstated as a result of other offending, although on appeal it was further suspended but increased.

On 25 November 1996 you were before the Magistrates’ Court at Preston, on two counts of obtaining property by deception, making a false document to the prejudice of another and using a copy of a false document.  (And on appeal to the County Court received suspended sentences).

In March 1997 you were before the Heidelberg Magistrates’ Court on counts of obtaining financial advantage by deception, obtaining property by deception and other similar offences.  (And on appeal to the County Court received suspended sentences).

You had other unrelated appearances and then before this Court on 2 August 1999 you appeared on 11 counts of obtaining property by deception, six counts of attempting to obtain a financial advantage by deception, seven counts of obtaining a financial advantage by deception and two counts of attempting to obtain property by deception.  You were sentenced to a total effective sentence of 4 years’ imprisonment with a minimum term of two years before being eligible for parole.

You were again before the Magistrates’ Court on similar charges in December 1999 and most significantly before this Court again on 20 March 2000 on 10 counts of obtaining a financial advantage by deception and five counts of obtaining property by deception.  You then had other appearances on, basically, unrelated matters in 2003, no fewer than four of them.  One of them, however, was operating as a crowd controller without a licence.  In 2000 the total effective sentence was two years and six months and you were ordered to serve 22 months before being eligible for parole.

It appears that the offences now before the Court commenced immediately after the appellant satisfactorily completed the period of parole last granted to him.

1. Quite remarkably, the sentencing judge in the present case found that the applicant had some remorse for his actions.  She appears to have been moved by the plight of his young children, who had been the subject of neglect at the hands of their ill mother.  And, despite the applicant’s appalling history, the judge saw some positives.  In her sentencing remarks, she said:

I also accept and count in your favour that in the period between the appeal matters and the attempt to pervert matter you had shown some positive changes in your life such as obtaining employment and working with a charity organisation, Endless Horizons.  When released on bail in 2011 you completed the CISP program, you removed yourself from the night club scene which had apparently been the context for much of the fraudulent activity in which you engaged and was said to be the kind of context in which you committed the offences before me on appeal.  You have also abstained from drugs since that time in 2011, and you have obtained stable accommodation.  I also factor in that following your offending in December you took on full time responsibility of the children, combining this with legitimate work.  These matters are to you credit.

The use of ‘comparable’ cases

1. Counsel for the applicant, whilst acknowledging the limitations of comparative sentencing cases, placed very great reliance on Saleem, in order to demonstrate that the sentence imposed on the charge of attempting to pervert the course of justice was manifestly excessive.  It is thus necessary to pay attention to the use that might properly be made of sentencing cases which are claimed to be comparable.

1. In Hudson, the Court (Ashley, Redlich and Harper JJA) made a number of observations concerning the use of comparable cases (so-called) as a guide to range, those observations being wholly apposite to the present case:[33]

The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender.  It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.  The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ.  For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.

Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences.  In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this court.  They may however be used in search of unifying principles.  That was not the use to which counsel sought to employ them here.

[33]Hudson, 616–7 [27]–[29] (footnotes omitted).

1. With respect, I am in complete agreement with these observations.[34]

   [34]See Reid (a Pseudonym) v The Queen [2014] VSCA 145, [93]–[94] (Priest JA).

Resolution

1. I am mindful that this Court cannot intervene unless satisfied that the sentence is manifestly excessive; and that in deciding whether it is so, it does not much matter that I might have imposed a different sentence if sentencing at first instance.  I am also mindful of the fact that sentencing is not an arithmetical exercise (and that a sentence must be the product of an instinctive synthesis of all relevant factors), and that, so long as a sentence falls within the available range, there is no single correct sentence.  But I am mindful, too, of the need to pay due regard to current sentencing practices, and to ensure that, so far as is practical — and paying due heed to the particular circumstances of the offence and offender — like offending is treated alike. 

1. The applicant’s offending was designed to persuade a court to pass a more lenient sentence upon him than may have been warranted by the objective circumstances.  It is offending which ‘strikes at the heart of the administration of criminal justice, and is designed to erode the confidence that should exist between the Bench and those appearing for sentence’.[35]  It was calculated and deliberate offending, and must have involved a degree of planning in order to mock-up the false references.  Moreover, it had a dimension that the offending in Saleem did not, in that it involved the applicant in attempting to persuade others to support his attempt to mislead the court.  In some respects the applicant’s actions were somewhat naïve; since, notwithstanding the existence of the references, it might have been expected that the full extent of the applicant’s criminal history would have been put before the court.  Thus, at best, even if the references were taken at face value, they likely would have had minimal effect on the result.  Indeed, having regard to the applicant’s history — replete, as it is, with convictions for creating and using false documents — it strikes me as highly unlikely that any judge with a modicum of sense would have taken the references at face value (particularly if the judge had his or her attention drawn to the observations of Osborn AJA[36]).  That said, it is a very serious matter to attempt to deceive a court, and it is conduct that deserves significant punishment.  General deterrence and curial denunciation are both important.  And given his history, specific deterrence is of marked importance.  Although the applicant cannot be punished again for his past misdeeds, he has little claim to leniency; his prospects of rehabilitation must be regarded as grim; and, given the grave risk of recidivism, there is increased need for community protection.

   [35]Saleem, [35].

   [36]Above [37].

1. Doing my best to balance those considerations, I am clearly of the view that the sentence on the charge of attempting to pervert the course of justice is more than arguably excessive, it is plainly so. 

1. Without straying beyond the proper bounds of the kind comparison that may be made with other sentencing cases, it seems to me that the applicant’s offending was objectively more serious than that in Saleem — as I have said, I accept the factual distinctions sought to be made by the respondent — but objectively less serious than in Tognolini.  But it must be acknowledged that the applicant’s criminal history is appalling, and infinitely more serious than that of the offenders in each of those cases.  The applicant is, so it appears to me, an incorrigible recidivist, who does not seem to give a second thought to generating false documents to suit his dishonest ends.  That said, however, although — having regard to his very significant criminal history — the applicant’s offending merits punishment significantly greater than in Saleem, it does not warrant a sentence of the same order as in Tognolini.  The sentence of four years’ imprisonment imposed on the charge on the Indictment is, in all the circumstances, manifestly excessive.

1. I do not ignore the fact that the offending relevant to the County Court appeal whilst the applicant was on parole, and that the applicant was on appeal bail at the time when he attempted to pervert the course of justice.  The fact that the applicant was on parole at the time of the commission of the offences the subject of the appeal is another factor which militates against the extension of leniency[37] (at least when it comes to looking at the issue of totality).  It is an aggravating feature of an offence to commit an offence whilst on bail, and I take it into account as such.[38] Moreover, s 16(3B) and s 16(3C) of the Sentencing Act 1991 evince a legislative policy that sentences for offences committed whilst an offender is on parole or on bail should be served cumulatively.  As far as I have been able to discern, on 22 May 2008, on appeal to this Court, the applicant was sentenced to a total effective sentence of imprisonment of 51 months; a non-parole period of 34 months was fixed; and pre-sentence detention of 402 days was declared.[39] Counsel told the sentencing judge that the applicant was released on parole ‘early 2010’; and, given that the offences the subject of the County Court appeal spanned a period from November 2010 to 28 April 2011, it seems clear that he was on parole when those offences were committed, but also clear that such parole period would have expired by 11 December 2013. It is impossible to say — and this Court cannot speculate upon — whether the Parole Board may take action on any perceived breach of parole. Further, insofar as the attempt to pervert the course of justice occurred whilst the applicant was on bail, having regard to the demands of totality, pursuant to s 16(3C) of the Sentencing Act 1991, I would direct cumulation between sentences only to the extent set out below.  

   [37]R v Kuru (1995) 78 A Crim R 447, 451 (Phillips CJ, Southwell and Hampel JJ).

   [38]R v Gray [1977] VR 225 (Gillard, McInerney and Crockett JJ); R v Treloar and Butler (1989) 43 A Crim R 75 (Crockett, Fullagar and Marks JJ); R v Basso & Frazetto (1999) 108 A Crim R 392 (Charles, Batt and Chernov JJA); DPP v Galea and Mosut (2000) 112 A Crim R 507 (Phillips CJ, Brooking JA and Hedigan AJA); R v Pop (2000) 116 A Crim R 398 (Wallwork, Parker and McKechnie JJ). See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.

   [39]Zotos, [66]–[67].

1. In light of all relevant factors, on the charge of attempting to pervert the course of justice I would impose a sentence of three (3) years’ imprisonment.  I would order that 10 months of the aggregate sentence imposed on the County Court appeal be served cumulatively with this sentence.  My intention is that the total effective sentence of imprisonment that the applicant will be liable to serve for the offence on the Indictment,[40] in conjunction with the sentences imposed by the County Court in its appellate jurisdiction,[41] is three years and 10 months’ imprisonment. Pursuant to s 14 of the Sentencing Act 1991, I would fix a period of three (3) years before which the applicant should not be considered eligible for parole.

   [40]No CR–14–00824, Indictment No 13913399.

   [41]No AP–13–1109.

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