Church v R

[2012] NSWCCA 149

Court of Criminal Appeal (NSW)|2012-06-18|Before: McClellan CJ, Price J, Button J, Clellan CJ

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2012-06-18

Before

McClellan CJ, Price J, Button J, Clellan CJ

Catchwords

(1936) 55 CLR 499 Kenny v R [2010] NSWCCA 6 Markarian v R [2005] HCA 25
(2005) 228 CLR 257 R v Allpass (1993) 72 A Crim R 561 R v Einfeld [2010] NSWCCA 87
(2010) 200 A Crim R 1 R v Nguyen [2004] NSWCCA 332

Source

Original judgment source is linked above.

Catchwords

(1936) 55 CLR 499 Kenny v R [2010] NSWCCA 6 Markarian v R [2005] HCA 25(2005) 228 CLR 257 R v Allpass (1993) 72 A Crim R 561 R v Einfeld [2010] NSWCCA 87(2010) 200 A Crim R 1 R v Nguyen [2004] NSWCCA 332

Judgment (24 paragraphs)

[1]

Judgment 1McCLELLAN CJ AT CL: I agree with Button J. 2PRICE J: I agree with Button J. 3BUTTON J:

[2]

Introduction 4On 14 October 2011 in the District Court at Parramatta, Judge Colefax SC convicted Leanne Tracey Church ("the applicant") of one count of making an omission intending to pervert the course of justice. The offence was brought pursuant to s 319 of the Crimes Act 1900, and carries a maximum penalty of imprisonment for 14 years and no standard non-parole period. His Honour proceeded to sentence the applicant to imprisonment for a total term of 2 years 8 months, with a non-parole period of 1 year 4 months. Clearly enough, special circumstances were found that permitted a variation of the statutory ratio; if that had not occurred, the non-parole period would have been imprisonment for 2 years. The applicant seeks leave to appeal to this Court with regard to that sentence.

[3]

Chronology 5On 5 April 2006, a dispute took place between the daughter of the applicant and another woman ("the victim") at the Royal Hotel in Hill End in the Central West of New South Wales. Violence ensued, and the victim was left with swelling and bruising to much of her body. The applicant joined in the attack by her daughter on the victim. The applicant was charged with assault occasioning actual bodily harm. 6In the months after that, the applicant led people in Hill End to believe that she was suffering from cancer. That was not true. The pretence was not limited to words. It included shaving her head, wearing a bandana, and seeming to attend a clinic in order to receive treatment for the illness. 7The applicant pleaded not guilty to the charge of assault occasioning actual bodily harm. A hearing of that charge was conducted before Magistrate Hodgson in Mudgee Local Court. At the end of the hearing, on 19 October 2006, the Magistrate found the offence proven against the applicant. Turning to sentence, the Magistrate indicated that a gaol sentence was a distinct possibility, and ordered a pre-sentence report. The solicitor then appearing for the applicant immediately indicated that the applicant was suffering from cancer, and submitted that the matter could be dealt with there and then. The applicant, who was present, said and did nothing to contradict that assertion made by her solicitor about her medical condition. The Magistrate agreed to adopt that course and placed the applicant on a s 9 bond for 3 years. The Magistrate then said "the only thing stopping you from going to gaol is because of your medical condition." 8On 10 November 2006, a fundraiser was held by the people of Hill End in order to help the applicant pay her purported medical expenses. The applicant took receipt of about $200 that was raised. 9Subsequently, a suspicion arose that the applicant had permitted the Magistrate to be misled about her medical condition. 10In May 2009, Police offered the applicant an opportunity to engage in an ERISP. She exercised her right to silence. 11On 6 April 2010, a Court Attendance Notice issued for the public justice offence under consideration. On 20 September 2010 the matter was committed for trial. On 30 May 2011 the trial was listed to commence. On 31 May 2011, the applicant pleaded guilty in the District Court. On 24 August 2011, when the proceedings on sentence were part-heard, her bail was revoked.

[9]

Decision 23I consider that it was an important part of assessing the objective seriousness of the public justice offence for the sentencing Judge to determine the effect that the offence had on the proceedings before the Magistrate. By way of illustration, identical lies on oath ("I did not see my neighbour drive his car that day") may be vastly different in seriousness, depending upon whether what was at stake was a fine for driving whilst disqualified, or many years in gaol for murder. I do not perceive error in the sentencing Judge undertaking that task. 24Nor do I think that the finding of fact was not reasonably open and is therefore liable to attract intervention of this Court. It is noteworthy that the sentencing Judge did not seek to determine what "must" or "would" have happened before the Magistrate. That would have been a different exercise, in light of the fact that the Magistrate did indeed order a pre-sentence report (and therefore cannot have been determined to sentence the applicant to full-time imprisonment there and then). I also accept that the statement "the only thing stopping you from going to gaol is your medical condition" could well have been more of a post-sentence admonition to good behaviour in the future rather than a considered reflection of what would definitely have happened but for the purported illness. 25Instead, the sentencing Judge referred to the sentence that "ought to have been imposed" and the sentence that, in his Honour's opinion "would have been the appropriate sentence". Those determinations were made after taking into account all of the evidence before the sentencing Judge, not just the material before the Magistrate. 26I do not consider that the sentencing Judge was finding as a fact what would have happened. His Honour was determining what ought to have happened. I consider that the finding that the applicant ought to have been sentenced to imprisonment for 12 months, taking into account everything that the sentencing Judge knew by that stage, was reasonably open. 27Finally, I do not accept that there was a conflation between the sentence that ought to have been imposed for assault occasioning actual bodily harm and the sentence that was actually imposed for the public justice offence. It would have been an error for the sentencing Judge to seek to make up for the gaol sentence evaded in the Local Court with the gaol sentence imposed in the District Court. But there is no sign of that having happened. 28I would not uphold Ground One.

[11]

Submissions 29Counsel for the applicant submitted that the fact that the sentencing Judge made no explicit reference in the remarks on sentence to the media attention paid to the applicant demonstrates that it had not been taken into account. Counsel submitted that it is well established that such treatment can be taken into account as extra-curial punishment, and submitted that it should have been taken into account in the particular circumstances of this case. 30Counsel for the applicant further directed this Court to the decision in Kenny v R [2010] NSWCCA 6. In that case Howie J (with whom Basten JA and Johnson J agreed, Basten JA also delivering a separate judgment) said at [44] - [45]: "[44] There is little doubt that a court can take into account the effects upon the offender that have occurred as a consequence of the commission of the offence. It can be a financial loss, for example the loss of employment or superannuation benefits. It can be a physical injury that has occurred to the offender, for example serious injury to the driver charged with causing death or injury to some other person as a result of the use of a motor vehicle. But it can go further and include other types of disadvantages resulting from the offending. [45] In R v Allpass (1993) 72 A Crim R 561 the Court was concerned with a Crown appeal in respect of the digital penetration of the vagina of a 9 year old girl by a man aged 76. There was intense media coverage of the offence and the sentence imposed. The Court referred to some of the effects of the offence and its publicity as follows: The evidence showed that, following the events of 4 January 1992, the respondent and his elderly wife were subjected to a campaign of abuse and harassment, involving threats of serious injury to person and property. It should be added that the Crown concedes that it is relevant to the outcome of this appeal that this campaign intensified following the announcement of Judge O'Reilly's decision. It reached such a level that the respondent was forced into a psychiatric clinic for treatment, and, according to the evidence, he was pursued even there. The respondent and his wife have had to leave their home, removing their belongings under cover of darkness, and they now live elsewhere under assumed names. Quite apart from the decision of this Court, the respondent and his wife have paid a high price for his wrongdoing. This was one of the considerations taken into account by the Court in determining to dismiss the Crown appeal." 31Counsel for the respondent submitted that the evidence was vague and imprecise, and in any event was not so extreme as to amount to extra-curial punishment that needed to be taken into account. He contrasted this case with cases where the careers of offenders had been destroyed, or their lives disastrously disrupted, such as in R v Allpass (1993) 72 A Crim R 561.

[13]

Decision 34I accept that the actions of the media can, in extreme cases, amount to extra-curial punishment. I also accept that the media interest in this matter was substantial, and having one's crimes exposed on national television could be gruelling and possibly deleterious to one's mental health. But here the applicant had undertaken an unusual and brazen crime that featured not only deception of a magistrate but also of a community. More generally, it is well-known that crimes committed by local citizens are given much more prominence in the media in small country towns than they are in metropolises like Sydney. 35In any event, I am not persuaded that his Honour failed to take the media attention and its effects on the applicant into account. The solicitor for the applicant made oral submissions about the media attention very shortly before his Honour delivered the remarks on sentence. It is most unlikely that his Honour had forgotten or disregarded what had been said by the solicitor of the applicant moments before. His Honour also referred to the report of Dr Jones when his Honour said in the remarks on sentence: "A strong subjective case has been advanced on behalf of the offender through the pre-sentence report and the report of a psychiatrist, Dr Jones." 36It is true that it is incumbent on a sentencing judge or magistrate to explain his or her findings and reasons in the remarks on sentence. But that does not mean that, wherever there is a failure to refer to any fact or topic in the remarks on sentence, one must infer that the matter was not taken into account, and error is thereby established. Remarks on sentence should not be unnecessarily lengthy, and on many occasions can be succinct, even in the District Court. Their purpose is to explain to the offender, the persons present in court, and the wider community, why the sentencing judge or magistrate is imposing the sentence that will immediately follow. Remarks on sentence should not have to recite laboriously all of the evidence given or tendered, the facts found, or the legal principles applied, for fear of committing an error by omission. The mere fact that a matter has not been mentioned in the remarks on sentence does not of itself found an appeal to this Court. 37I do not consider that Ground Two has been established.

Church v R

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