Director of Public Prosecutions v Hetman

Commencement of Proceedings 4The defendant was charged before the Court with the offences on 1 May 2012. The Court asked why it had taken over 4 years to bring proceedings against the offender. The solicitor for the DPP was unable to inform the court of any reason why there had been such a prolonged period between the giving of false evidence and its retraction and the laying of Court Attendance Notices. The issue of delay is a significant factor to be addressed in sentencing for these offences. I will return to it later in these remarks.

The Plea 5On 19 June 2012 the defendant entered a plea of guilty to all charges. The prosecution accepted a plea to a single charge for the purpose of sentencing with the 4 additional charges being placed on a Form 1 pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999 ('the Act'). 6The DPP concedes the defendant's pleas of guilty were entered at the first available opportunity. Given the acknowledgment by the offender on 17 March 2008 that his earlier evidence had been false it is difficult to contemplate the entry of anything other than a plea of guilty; however, relative to the date of commencement of proceedings I accept the plea is to be dealt with on the basis that in line with the decisions of R v Thomson; R v Houlton [2000] NSWCCA 309 and R v Borkowski [2009] NSWCCA 102 it should attract a discount for the utilitarian value that is at the upper end of the range. I allow a discount of 25% for the utilitarian value of the plea. I categorize the degree of criminality as being towards the lower end of objective seriousness for this type of conduct.

Sentencing context 7Offences such as those committed by the offender have attracted a number of clear statements of principle. I note the comments made by James J in R v Einfeld [2009] NSWSC 119 at [183]: "As has often been said, each of the offences of perjury and perverting the course of justice strikes at the heart of the administration of justice. These offences are often referred to as offences against public justice. In sentencing for these offences there is a special need to give effect to the purposes of sentencing of general deterrence and denunciation as well as the other purposes set out in S.3A of the Crimes (Sentencing Procedure) Act 1999. In the case of perjury a full time custodial sentence should be imposed unless there are very special circumstances ... persuasive subjective consideration should not be permitted to cause inadequate weight to be given to the objective facts of the offending." 8These statements of principle in relation to conduct that is analogous to that before the Court in these proceedings are unequivocal. They are consistent with the statements or principle contained within R v Aristodemou (unreported, NSWCCA, 30/6/94): "The will of the community that led to and is manifested by the enactment of the ICAC Act is that corruption should be eradicated from the community and that the means to produce that result should include the coercive and inquisitory powers conferred on the ICAC by statute. Where a person acts so as to frustrate an ICAC investigation into corruption it would appear to me that the community would approve that he should be severely punished. In particular I do not accept the proposition that the community would regard in any way a mitigating circumstance that the motive for the applicant's false swearing was not to conceal corruption on his own part but was to conceal the corrupt conduct of others. No doubt there is an acceptance on the part of those who commit crime that it is dishonourable to inform on others and that there is some nobility in declining to do so. It by no means follows that the same view is taken by right thinking members of the community and for my part; I decline to proceed on the assumption that this is so. It is no doubt true that in some circumstances the seriousness of a crime may be seen to be mitigated if it was committed for an honourable albeit mistaken motive. It is in my view an attempt to press that submission too far if the conduct is such to defeat the purpose of legislation enacted in the public interest." 9Counsel for the defendant submitted the penalty should be further mitigated by reason of the offender's prior antecedents, successful efforts to engage in rehabilitation, assistance to authorities and the unfairness brought about by the delay in initiating the prosecutions. Whilst relevant in determining sentence this does not mean that the conduct in committing the offence is correspondingly mitigated. In Aristodemou the Court cited with approval the observations made in R v Bulliman (unreported, NSWCCA, 25/2/93) wherein Abadee J said: "False evidence strikes at the whole basis of the administration of justice and indeed it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for making of false statements on oath in which the offence or offences are committed.

Subjective Factors 10Issues of principle to one side there are no aggravating features in the commission of the offence such that might be identified as falling within section 21A(2) of the Act. However, the statutory provisions do not cover the field or constrain the court. The fact that a public servant committed the offences is a relevant matter to take into account. There is unquestionably a breach of trust arising from the offender's conduct that cannot be ignored. 11The offender comes before this Court in circumstances where the Court accepts he is to be dealt with as a person of prior good character. Although there are convictions recorded on his record as a 20 year old, they are in my view to be regarded as representative minor offences committed by young people and, given the effluxion of time since they were dealt with by way of monetary penalty, for all intents and purposes, spent convictions. 12I accept the submission by counsel that the offender is unlikely to re-offend. This inference is drawn on the basis of his self-rehabilitation during the last 4 years. I also accept the Court is entitled to draw the inference that his plea is accompanied by an appropriate level of contrition and remorse. This inference can be drawn from the fact that despite his false evidence, it was retracted under oath on the same day as it was given. Contrition and remorse may be inferred from the early withdrawal of his false testimony and his willingness to assist authorities. In this regard the DPP concedes the offender did offer to assist but did so in relation to information of which the ICAC was already aware. Nevertheless it cannot be inferred the offender was aware of that fact and whilst, according to the DPP, his evidence was corroborative it cannot be ignored. The weight to be given however is below the customary significant additional discount for assistance to authorities. I am prepared to allocate a further 10% discount in favour of the offender on the basis of his assistance. 13The pre sentence report and submissions by counsel confirm the offender has spent the time since commission of the offences re-establishing himself within the community. In the period subsequent to his dismissal he has built up a business he first established in 2005 to the extent that he now has an established staff and a number of contractors who depend upon him for the whole or part of their livelihood. Letters of support from his wife and his father confirm a turnaround in the offender's mindset and express understandable optimism that he has rehabilitated himself to the extent that he will proceed in his life in a positive law abiding fashion. I accept that these views have a foundation of confidence that the court should not ignore.

The Sentence 14Had the Court been sentencing this offender at a time shortly after the commission of the offences there is little doubt the offender would have been sentenced to a term of imprisonment. Statements of principle outlined above point almost exclusively in that direction. Sentencing the offender at this time however is complicated by the period of delay between offending and prosecution. As indicated above no explanation has been provided to the court to explain why it took some 4 years to commence proceedings. 15Delay of course has provided the offender with the opportunity to re-organise his life to the extent that he can put before this Court today a set of circumstances on rehabilitation that would not have been of such assistance at an earlier time. This is through no fault on his part. An unexplained and lengthy delay in the commencement of proceedings however does not ameliorate the appropriateness of the sentence. As Howie J said in R v Moon (2000) 117 A Crim R 497 at [81]: "delay should not be allowed to dictate a sentence that is not appropriate to punish the particular offender or is not proportionate to the circumstances of the particular offence." And as Street CJ said in R v Todd [1982] 2 NSWLR 517 at 519: "sentencing for a stale crime long after committing the offences calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence when lengthy will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended." 16Although the circumstances in both of these cases are very different from those that confront a Court exercising jurisdiction within the Local Court the principles enunciated remain pertinent. Where appropriate the consequence of inordinate delay can operate to mitigate the severity of the sentence. In my view it would be inappropriate to use delay as a mechanism for contriving a lesser penalty as some sort of "reward" to the offender. The court's remarks in Moon [supra] support this approach. 17The appropriate sentence for the offence to which the plea of guilty has been entered is, after applying the discount for the utilitarian value of the plea and assistance to authorities, one of 6 months imprisonment. This is the starting point. The sentence to be imposed on the offender must also reflect the fact that 4 additional offences of like nature are to be taken into account pursuant to section 32 of the Act on a Form 1. The approach to be taken by Courts on sentence where additional matters are placed on a Form 1 is outlined in Attorney General's Application under S.37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 wherein Spigelman CJ said at [42]: "although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate ought be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences. These elements are entitled to greater weight than they might otherwise be given when sentencing for the primary offence. 18Applying the guideline in these proceedings and taking into account the principle of totality I determine the appropriate sentence to be 8 months imprisonment. Having determined the appropriate sentence and in line with the directions set out in R v Zamagias [2002] NSWCCA 17 the Court now has to determine the manner in which such sentence is to be served. It is at this point that demonstrated rehabilitation and delay are to be applied. 19For the offender to be placed into full time custody after such a period of unexplained delay on the part of the authorities would arguably be seen as giving rise to a sense of justifiable grievance. In the hiatus between the offence and sentencing the offender has got on with his life. His children have grown with the benefit of his parenting and guidance. His marital relationship, once under threat, has been restored and appears on solid ground. His success in business has created a group of employees and contractors who are wholly or in part financially dependent on the ongoing viability of his business. 20The question to be determined in these circumstances is whether the community's sense of entitlement to retribution identified by Spigelman CJ in my earlier remarks would be outraged by a decision not to order that the sentence of imprisonment be served in actual custody. 21One of the purposes of sentencing set out in section 3A of the Act is rehabilitation. It is not the exclusive purpose but it can never be overlooked as perhaps the final destination in any sentence, whether it be by imprisonment or not. Courts, in the proper exercise of compassion, from time to time will find it appropriate when the path to rehabilitation has been amply demonstrated, to draw back from the edge of incarceration in favour of a less onerous outcome. 22In the context of these proceedings this is one of those occasions. In my view the purpose of denunciation, general deterrence and particular deterrence are met by identifying with clarity through an articulation of the principles and most likely consequence of this type of offending. The community however has no interest in crushing the prospect of ongoing rehabilitation and the consequences thereof where the agencies of the State have been inexplicably dilatory in acting on their behalf. 23The offender is convicted. He is sentenced to imprisonment for 8 months. In the exercise of my discretion and pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 I suspend the execution of the sentence conditionally upon the offender entering a bond to be of good behaviour for 8 months from today and appear further before this Court if called upon. Judge Graeme Henson Chief Magistrate 25 September 2012 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2012