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[2012] NSWLC 13
Local Court of NSW
2012-09-06
Original judgment source is linked above.
REMARKS ON SENTENCE 1The offender, Karyn Paluzzano, committed crimes of dishonesty whilst she was the New South Wales Member of Parliament for Penrith, Parliamentary Secretary and Assistant Minister for Education and Training. She is to be sentenced for those crimes.
THE OFFENCES 2The offences are as follows. Sequence 2: Obtaining Money by False or Misleading Statements between 29 August 2006 and 24 November 2006 contrary to section 178BB(1) of the Crimes Act 1900 (NSW). Sequence 3: Obtaining Money by False or Misleading Statements between 7 May 2007 and 1 June 2007 contrary to section 178BB(1) of the Crimes Act 1900 (NSW). Sequence 6: Obtaining Money by False or Misleading Statement between 4 June 2007 and 29 June 2007 contrary to section 178BB(1) of the Crimes Act 1900 (NSW). Sequence 4: Knowingly Give False and Misleading Evidence in proceedings before the Independent Commission Against Corruption ('ICAC') on 16 April 2010 contrary to section 87(1) of the Independent Commission Against Corruption Act 1988 (NSW). Form 1 offence: sequence 5- to be taken into account in sentencing for sequence 4: Knowingly Give False and Misleading Evidence in proceedings before the ICAC on 16 April 2010 contrary to section 87(1) of the Independent Commission Against Corruption Act 1988 (NSW).
THE FACTS 3The Agreed Facts are outlined in Exhibit 1. 4In 2003, the offender was elected as the New South Wales Member of Parliament (MP) for Penrith. Upon her election, the offender was entitled to the services of two permanent electoral staff in order to assist her in fulfilling her parliamentary duties. 5In August 2006, the New South Wales Parliamentary Remuneration Tribunal introduced a new entitlement which became known as Sitting Day Relief ('SDR') payment. The SDR payment was introduced for the purposes of financing the employment of a temporary relief worker for electorate offices on parliamentary sitting days when a permanent electoral staff member was absent from the office and attending Parliament House with their MP. 6Payment under the SDR scheme required that the relief staff member worked at the electoral office, namely Penrith in the case of the offender, whilst one of her permanent staff members worked at Parliament House. 7At the time of the introduction of the SDR payment in August 2006, the offender had two electoral staff member positions filled by Timothy Horan for one position and Kerrie Donlan (on Mondays, Tuesdays and Fridays) and Rhonda Medlen (on Wednesdays and Thursdays), who jointly shared the second position.
Sequence 2: 8During 2006, seven SDR claim forms were submitted to the Clerk of the Legislative Assembly for payment covering 17 separate sitting days at Parliament. The details of the seven SDR claim forms can be summarised as follows: No. Dates claimed for payment within SDR Form Date the offender signed SDR Form Electorate Officer said to be in Parliament Relief Officer said to be in Penrith electorate office
9On each of the 7 SDR claim forms, the offender certified via her signature that the terms of SDR payment had been satisfied via the following declaration: The electorate officer nominated above worked at Parliament House and temporary staff worked at my electorate office on the sitting days the relief entitlement has been claimed. 10Within the seven SDR forms, temporary staff member Jennifer Launt was identified as having worked within the Penrith electorate office on 17 different days. However, rather than working at the Penrith electorate office on the identified days, Ms Launt performed work on 17 other days assisting the offender (in and around Penrith) whilst being paid by Parliament under the terms of the SDR scheme. These SDR forms also falsely stated that electoral staff members, Tim Horan and Rhonda Medlen, had attended Parliament House on these same days when they had in fact worked within the Penrith electorate office.
Sequence 3: 11During May 2007 a further five SDR claims were signed by the offender covering seven separate sitting days at Parliament. The details of the five SDR claim forms from 2007 can be summarised as follows: No. Dates claimed for payment within SDR Form Date the offender signed SDR Form Electorate Officer said to be in Parliament Relief Officer said to be in Penrith electorate office
Sequence 6: 12During June 2007, a further six SDR claim forms were signed by the offender covering ten separate sitting days at Parliament. The details of the six SDR claim forms from June 2007 can be summarised as follows: No. Dates claimed for payment within SDR Form Date the offender signed SDR Form Electorate Officer said to be in Parliament Relief Officer said to be in Penrith electorate office
13Each form stated that either temporary staff member Melanie Palmer, Grace Gumkowski or Keely Horan had performed work within the Penrith electoral office on each of the identified days. However, these temporary relief officers performed their work at Parliament House (and not the Penrith electoral office as stated). The same forms also stated that on each of the identified days, either Kerrie Donlan, Jennifer Launt (a permanent staff member as of 2007) or Tim Horan had accompanied the offender to Parliament House. However, these electoral staff members had in fact worked within the Penrith electoral office and not Parliament House as stated. 14The offender, by signing the abovementioned false declarations, obtained an additional staff member who benefited through paid employment under the SDR scheme despite non-compliance with its stated requirements.
Sequence 4: 15On 16 April 2010, the offender gave false evidence before the ICAC at a Compulsory Examination in relation to false claims for SDR payments. She denied being knowingly party to any improper conduct in relation to falsely claiming monies for her office or for any of her employees through the SDR scheme. The questions and her answers were: Q: Were you party to the, were you knowingly party to any falsification of (SDR) records? A: No. Q: Were you knowingly (a) party to any improper conduct in relation to claiming monies for your office (or) for any employee? A: No. 16On 5 and 6 May 2010, the offender gave a contrary version of events before an ICAC Public Inquiry when she acknowledged having given false evidence on 16 April 2010 in relation to the SDR scheme. The questions and her answers were: Q: And do you accept that following the introduction of that facility (SDR) by the New South Wales Parliament you signed a number of sitting day relief forms in the years 2006 and 2007 which did not reflect the true position regarding the employment of people on sitting, or sitting day relief? A: I did. Q: You accepted in your evidence yesterday that you'd signed declarations for sitting day relief knowing them to be false? A: That's correct. Q: And making false declarations to Parliament? A: That's correct. Q: It would be quite false to say that you were not a knowing party to any improper conduct in relation to claiming moneys either for your office or for any employee? A: That's correct.
The Form 1 - sequence 5: 17The Form 1 is Exhibit 2. 18On 16 April 2010, the offender gave evidence before the ICAC at a Compulsory Examination in relation to the practice of having somebody from her staff accompany her to Parliament. The question and her answer were: Q: I understand that, but my question was a simple one, as a matter of course it was the practice of your office to your knowledge to have someone accompany you each day you went to Parliament as from 30 August 2006? A: That's, that's correct. 19On 6 May 2010, the offender acknowledged her statement on 16 April 2010 that it was her practice to have a member of staff accompany her to Parliament on sitting days in late 2006 was also false. The questions and her answers were: Q: So how could you truthfully say three weeks ago that it was the practice of your office to have someone accompanying you each day you went to Parliament as from 30 August 2006? How can you truthfully say it? Can you explain how you can truthfully say that? A: No, no. Q: So we can accept you? A: Yes. Q: That it was false? A: Yep. Q: And it was false to your Knowledge at the time, namely 16 April 2010. It was, wasn't it? A: Yeah. Yes.
THE MAXIMUM PENALTIES 20For sequences 2, 3 and 6, obtaining money by false or misleading statements, the maximum penalty for each offence is imprisonment of 5 years. As there was no election to have these matters dealt with on indictment, the jurisdictional limit of 12 months imprisonment applies to each offence. This is because the value of the money obtained in each offence was less than $5,000. 21For sequence 4, knowingly giving false and misleading evidence to the ICAC, the maximum penalty is a fine of $22,000 or imprisonment of 5 years or both. As there was no election to have this matter dealt with on indictment, the jurisdictional limit is 2 years imprisonment.
THE OFFENDER'S EVIDENCE OF THE OFFENCES 22The offender gave evidence of running a very busy electorate office in Penrith at the times of the offences. For example, from 2003 to 2010, she conducted mail-outs (as exhibited under tab 13 of Exhibit 5) and 'Pollie in the Park' sessions every fortnight. She was a member of many committees and undertook many community responsibilities. 23Of the office staff, Mr Horan had a full-time position, whilst the remaining position was shared between two people. The offender's approach to staffing the shared position was to select people from the TAFE system and particularly provide opportunities to women keen to return to work after having children. 24In 2006, the offender began to have concerns about the performance of Mr Horan. Furthermore, there was a lot of absenteeism in 2006 and 2007, as evidenced in Exhibit 6. 25The offender stated that she did not prepare the SDR claim forms. She said that she signed them without verifying their accuracy. In her evidence-in-chief, the offender stated that all MPs have to trust their staff and she trusted Mr Horan as her office manager. She said she should have been more diligent. 26Following cross-examination of the offender, the Court sought clarification of the basis of the pleas of guilty to the SDR offences. It was pointed out by the Court that the offender had accepted in her later evidence in the ICAC proceedings that she had signed the SDR forms at a time when she knew them to be false. The offender's counsel sought clarification from her client. The offender then gave evidence that, at the time she signed some of the SDR claim forms, she knew they were incorrect. She said that she also signed some blank forms. The offender could not remember which forms that are the subject of the offences were blank or incorrect when she signed them. 27The offender states that she did not receive any financial benefit from the offences. She claimed that the SDR funds paid as a result of the fraudulent claims went directly to the staff members. The money was paid for work actually performed, albeit not under the qualification requirements for SDRs validly to be paid. 28In respect of giving false and misleading evidence at the ICAC, the offender stated that she was traumatised at that time. She said that in 2009, it was brought to her attention that Mr Horan was not performing his duties and that others had to absorb his work. The offender sought advice from the human resources section of Parliament and she then met with Mr Horan and gave him a letter of warning about his performance at work. It was reported to the offender that Mr Horan had threatened a staff member and was causing stress and fear to the other staff members. The offender sought advice about security issues. 29When the offender indicated she would report these matters, she said that Mr Horan threatened to accuse her of misappropriation of funds if she went ahead with the report. Nonetheless, the offender did report Mr Horan's conduct to the Parliamentary Speaker and the Clerk of the Legislative Assembly undertook an investigation into Mr Horan's activities. Mr Horan was then suspended from duty on full pay. Mr Horan then went to the ICAC and accused the offender of inappropriate dealings with claims. 30By the time of the ICAC proceedings on 16 April 2010, the offender stated she was fearful for her life. She and one of her children had received anonymous threatening letters. Decapitated rabbits had been placed at the entries to her home. She said she was concentrating on forged forms from her office. She cannot remember if she was caught by surprise by the questions concerning the SDR claims.
THE AGGRAVATING FACTORS OF THE CRIMINALITY 31Whilst section 21A(2) of the Crimes (Sentencing Procedure) Act (NSW) 1999 ('the Act') provides a list of aggravating factors to be taken into account in assessing the appropriate sentence for an offence, this is not an exhaustive list. That section does not absolve the Court from the task of also analysing the criminality involved in the elements of the offences and so determining the degree of criminality involved in the commission of the offences. Factors of aggravation might be referred to within section 21A of the Act or arise in an analysis of the elements themselves.
Breach of Trust 32The offences before the Court are all serious offences of dishonesty. They are underpinned by moral turpitude in relation to the repeated breaches of the trust placed in the offender by the public and in relation to the lack of respect she accorded the justice system. As a Member of Parliament, the offender enjoyed a high position of trust to act in the public interest. Whilst the offender did not personally receive the funds involved in the false claims, her repeated breaches of public trust must be characterised as gross breaches. She obtained public money for others who performed work on behalf of the offender in circumstances where the offender was not entitled to pay public money to those people for their work. 33The offender's counsel submits on her behalf that, "[i]t is arguable that she was at all times acting in the public interest as she was providing a service to the public by obtaining payment for the staff". This submission is rejected. It misses the obvious point that the staff and the offender on their behalf were not entitled to the public funds; if the offender needed the work done other than under the valid SDR entitlement, then it was for the offender and her staff to come to some arrangement or for the offender to fund the work herself. 34The 18 false SDR claims also required a number of the offender's staff to participate in the fraudulent course of conduct. As the Crown rightly submits, the offender therefore has misused her authority in engaging in that fraudulent course of conduct involving her own staff.
The degree of recklessness in the SDR offences 35The offender committed the SDR offences with "reckless disregard" as to whether the statements were false. The offender's evidence was that she signed some blank forms and she also signed some completed forms which she knew to be false. It is clear that her recklessness in committing the offences of Obtain Money by False or Misleading Statement was of a high degree. She was not merely acting out of a failure to verify the information, but instead, she knew the details were false on some forms and for others, she knew that she was signing a document that had no details, therefore again knowingly executing a false document. Under section 4A of the Crimes Act 1900, 'recklessness' includes 'intention or knowledge'. Whilst that provision was enacted after the commission of the SDR offences, the legislation reflected the common law understanding of that term which existed at the time of the offences.
The aspect of knowledge in the giving of false evidence 36The Crown submits that the false evidence of the offender was about a matter absolutely central to the purpose of the ICAC proceedings. Although the offender could not in the sentencing proceedings remember whether she was surprised by questions in the ICAC proceedings about the false claims, the Crown points out that the offender must have known that she was summoned on 30 March 2010 to give evidence of such matters. The offender herself stated that Mr Doran had threatened to reveal such matters to the ICAC and he did indeed report the allegations as threatened. It is inconceivable that the offender was caught by surprise by the questions in circumstances where she acknowledged that she knowingly had signed numerous false claims and had been threatened by Mr Doran with their disclosure to the ICAC. The false evidence furthermore did not involve an exaggeration or a misleading statement, but instead, deliberately false evidence whilst she was still a Member of Parliament with a duty to uphold the administration of justice.
The course of conduct 37The breaches of trust involved in the offences of Obtaining Money by False and Misleading Statements extended over the submission by the offender of 18 false forms between 29 August 2006 and 29 June 2007. The offender not only committed the crimes concerning the SDRs, she then compounded her criminality years later by lying about those crimes in the ICAC proceedings. She was given a chance then to admit her crimes, but her guilty conscience was not so great as to cause her to admit her wrongdoing until further proceedings in May 2010.
THE MITIGATING FACTORS OF CRIMINALITY AND SUBJECTIVE FEATURES
Small total amount of money and the fact the offender did not receive the money herself 38The amount of money involved in the SDR offences was relatively small, totalling approximately $4,200. Whilst the offender herself did not receive these monies, these features of mitigation are largely eclipsed by the breach of trust, the number of claims signed by the offender with knowledge of their falsity and the fact she compounded the criminality by giving false evidence in the ICAC proceedings about those false claims. 39As stated by his Honour, Judge Henson, Chief Magistrate, in Independent Commission Against Corruption v Karkowski [2012] NSWLC 6 at [31]: The fact that the monetary value put on the acts of corruption by the prosecution is relatively small does not trivialise or mitigate the fundamental nature of corruption. ...[T]he quantum of the benefit goes to the question of the maximum jurisdictional legislative penalty. It does not mitigate the essential nature of corruption as a blight on the community.
Pleas of guilty 40The offender pleaded guilty to the offences on the ninth mention of the matter. The proceedings commenced in the Court on 21 November 2011 and the matter was eventually listed for a hearing to determine if the Court would allow witnesses to be called at committal proceedings. The offender then entered pleas of guilty on 7 June 2012 when another charge was withdrawn by the prosecution. 41There was some discussion in the sentencing proceedings as to the discount to be allowed for the plea. It was submitted by counsel for the offender that the plea attracts the maximum discount of 25 percent. It was conceded that the now repealed criminal case conferencing legislation did not apply to these proceedings in providing a greater discount as the court attendance notices were filed after 8 October 2011. 42Counsel for the defence submits that this chronology warrants the application of the maximum discount for the plea of guilty due to the utilitarian value in avoiding the need for a hearing. This does not accord with legal precedent or logic. Clearly, if a plea of guilty had been entered at the first mention of the matter, the utilitarian value would be greater than the utilitarian value afforded in this matter. It would be against public policy to apply the same discount in this matter without any distinction. That would not serve to encourage pleas of guilty at an early opportunity. It would not facilitate the efficient administration of the criminal justice system. It is not appropriate to suggest that the pleas should be characterised as early pleas of guilty due to the fact that the pleas were entered immediately upon the withdrawal of one of the charges. As summarised by his Honour, Justice Howie, in R v Borkowski [2009] NSWCCA 102 at [32]: The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater the discount.... Generally, the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced.... The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain... or where the offender is waiting to see what charges are ultimately brought by the Crown.... 43Accordingly, the discount appropriate given the timing of the plea in these proceedings is 20 percent and not the maximum of 25 percent.
Assistance 44The offender is entitled under section 23 of the Act to a further discount in her sentence for the assistance provided to authorities as revealed in Exhibit 4. The value attributed to the assistance is reasonably high and, together with the discount for pleading guilty, the combined discount is assessed at 40 percent.
Prior good character 45The offender has produced many good character references in Exhibit 5. She has no prior criminal history. Her counsel's submissions state that all of the character references provided by the offender "speak highly of her honesty, integrity and community service". The weight to be given to good character must be tempered by the offender's breach of the trust placed in her as a Member of Parliament. It was only because of her prior good character that the offender was placed in the position of trust where she had an opportunity to commit the SDR offences repeatedly between 2006 and 2007 without detection. Accordingly, less weight may be attributed to the prior good character: R v Kennedy [2000] NSWCCA 527. The overriding need for general deterrence can result, as it does in this case, in a reduced weight that might otherwise be attributed to prior good character.
Remorse and prospects of rehabilitation 46The offender gave genuine evidence of her remorse for her offences. That remorse is demonstrated in her further evidence to the ICAC on 5 and 6 May 2010 when the offender confessed her offences. 47It is of some concern that the offender has not consistently demonstrated an acceptance of her full criminality. For example, it has been noted that the offender gave evidence-in-chief in the sentencing proceedings which suggested that the SDR offences were committed through her lack of diligence in verifying the accuracy of the claims she signed and that the lack of diligence came about because she was so busy with her public duties and that she needed to trust her office manager, Mr Horan. This was despite her evidence that she began to have concerns about Mr Horan's work in 2006, when the offences began. Then, in later evidence, after the Court pointed to the admission in the later ICAC proceedings of signing the forms whilst knowing them to be false, the offender gave evidence that she had, at least in respect of some of the claims, signed them in direct knowledge of their falsity. She then clarified that some forms were blank when she signed them and the others were known by her to be false. 48The offender furthermore had been asked about her attitude to the offences by the author of the Pre-Sentence Report dated 9 August 2012 that is Exhibit 3. The offender denied her direct knowledge of the falsity of the claims when she signed them. The report states the following: In relation to the "Make False Statement" offences, Mrs Paluzzano accepted responsibility for signing the documents which were false and admitted that she should not have signed the documents without ensuring the veracity of the information contained therein. However, she denied being aware at the time of signing, that the documents contained information later proved to be false. She claimed to have been under constant stress due to both the nature and volume of work which she was required to process as an MP, a situation exacerbated by difficulties she was experiencing in managing the difficult behaviour of a particular staff member. She also claimed to have been experiencing other pressing family responsibilities and personal ill-health during this period. Mrs Paluzzano claimed that because of these demands, she placed her trust in her electoral office staff members to ensure the accuracy and veracity of all documents submitted for her signature. She now accepts that she should have checked the veracity of the documents herself, before signing them. 49Equally, when the offender was interviewed by Dr Nielsen, there was no indication of the offender's direct knowledge of the falsity of the claims when she signed them. Dr Nielsen stated the following at page 2 of his report dated 7 August 2012 in Exhibit 5: Ms Paluzzano said that she was too busy with parliamentary and electoral duties to keep abreast of the day to day running of her office.... She said that [Mr Horan] was responsible for managing the office and the decisions regarding the deployment of staff that were later the subject of the adverse finding by ICAC were actually made by him, although she agreed she was ultimately responsible and consented to the arrangement. 50The offender's earlier accounts of the offences, all made following her pleas of guilty, have the appearance of attempting to minimise the criminality without disclosing her more direct knowledge of the falsity with which she signed the SDR claims. The weight to be given to her remorse must be tempered by this apparent, repeated attempt to minimise or even deny her criminality. This in turn detracts from what might be otherwise seen as good prospects of rehabilitation.
Extra-curial punishment - family and staff suffered, media attention, loss of job 51The offender gave evidence in the sentencing proceedings that her family have suffered as a result of her offences and their public exposure. She spoke about the impact of these events on her children's education and emotional wellbeing. The offender has three children, aged 18, 17 and 13 respectively. She also has a husband. The evidence of the offender detailed the negative impact of the proceedings and what she described as "ferocious" media scrutiny upon herself and her family. 52Furthermore, the staff of the offender's electoral office no longer have employment in that capacity. 53The offender herself resigned from public office following her admissions made to the ICAC on 5 and 6 May 2010. She has retrained in education and has more recently been employed as a teacher. The offender fears that a full-time sentence of imprisonment will prevent her working as a teacher. In fact, the offender's pleas of guilty already have resulted in a review as to the eligibility of the offender to work as a teacher.
The offender's mental state at the time of giving false and misleading evidence to the ICAC 54The offender gave evidence that at the time she gave false evidence to the ICAC on 16 April 2010, she was under extreme stress and was fearful. She said that as a result of Mr Horan's difficult behaviour, the anonymous, threatening letters she and her daughter had received, the intense media scrutiny and the decapitated rabbits left at her home, she was in fear of her life. 55The offender furthermore said that her focus in preparing for the ICAC proceedings was on unrelated forgeries, not on the SDR claims. She gave evidence that the period of the ICAC proceedings was extremely traumatic and that she was "in a terrible state" and had to receive medical assistance. 56The report of Dr Steven Wong dated 7 August 2012 in Exhibit 5 states that the offender was treated in April and May 2010 for extreme stress and anxiety attacks requiring counselling and benzodiazepam medication. 57Ms Julie-Ann Geddes, clinical psychologist, gave evidence that she was asked by Parliament to give trauma support to the offender in March 2010. She confirmed that at that time, the offender was traumatised. Following the further ICAC proceedings, the offender had a "breakdown" and was not sleeping or coping. The offender was prescribed Valium by a doctor.
Mental health 58The offender has been diagnosed as suffering from adjustment disorder with anxiety and depression. Dr Olav Nielsen, in his report dated 7 August 2012 contained within Exhibit 5, stated: My impression from the one interview is that she was still significantly depressed and would probably benefit from further treatment and would not rule out the possible benefit of treatment with antidepressant medication. 59An offender's mental condition in sentencing proceedings is relevant in a number of ways. It can have the effect of reducing the assessment of the moral culpability so that matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. However, if an offender acts with knowledge of what he or she is doing and with knowledge of the gravity of the actions, the moderation need not be great: R v Wright (1997) 93 A Crim R 48 at 51 to 52; Benitez v R (2006) 160 A Crim R 166 at [41] to [42]; Taylor v R [2006] NSWCCA 7 at [30]. In this case, the offender was not suffering from any particular mental health issues at the time of the SDR offences. At the time of giving false evidence in the ICAC proceedings, the offender was suffering stress and anxiety, but it is not suggested that those conditions detracted from her knowledge of what she was doing and of the gravity of the actions, even if it is a "blur" to her now as she stated in her evidence. In these circumstances, the strong needs for general deterrence and denunciation are not greatly reduced by evidence of the offender's mental health. 60The offender's mental health is relevant to rehabilitation: R v Engert (1995) 84 A Crim R 67 at 71. As stated by Dr Nielsen, the offender would benefit from further treatment.
Delay 61Counsel for the offender submits that there was considerable delay in prosecuting this matter. The SDR offences were committed from August 2006 until June 2007. The date of giving false evidence in the ICAC proceedings was 16 April 2010. On 5 and 6 May 2010, the offender then admitted the falsity of her earlier evidence. The Court Attendance Notices were served on 1 November 2011. 62Since the offences, the offender has taken steps towards her rehabilitation. She left Parliament on 5 May 2010 and has requalified as a teacher. The offender has more recently been employed in that capacity. She has sought medical diagnosis, counselling and treatment. 63In R v Todd [1982] 2 NSWLR 517 at 519, the impact of delay on sentence was explained as follows. Moreover where there has been a lengthy postponement, fairness... requires weight to be given to the progress on his rehabilitation.... (and) to the circumstance he has been left in a state of uncertain suspense... to what will happen to him when in due course he comes up for sentence.... at times this can require what might be otherwise a quite undue degree of leniency being extended....
COMPARABLE CASES 64The counsel for the defence has provided the decisions in comparable cases by which the appropriate sentence in this case can be determined. It is, of course, difficult to find any case which involves a similar factual matrix. 65In DPP v Kostakidis [2010] NSWLC 20, the offender was a police officer who pleaded guilty to three counts of giving false evidence to the Police Integrity Commission and was sentenced to good behaviour bonds of two years under s 9 of the Act. That case did not involve the type of criminality involved in the SDR offences which are also involved in this case. There had been a delay of over three years between the offences and the commencement of prosecution. The combination of this delay and the assistance to authorities caused the Court to exercise leniency rather than to impose the sentence of full-time imprisonment which otherwise would have been imposed. 66In DPP v Harb [2007] NSWLC 26, the offender was sentenced to 104 hours of community service to be served concurrently for each charge. The offences were committed when the offender held himself out to be a lawyer whilst he was employed as a clerk in the Local Court Registry at Penrith. Whilst there was abuse of the offender's position as a public official in that case, the criminality did not involve such a gross breach of trust as occurred in this case. 67In R v Purcell [2010] NSWDC 98, the offender was a Superintendent of Police. He pleaded guilty to a common law offence of misconducting himself as the holder of public office and giving misleading evidence to the Police Integrity Commission. In essence, the offender had disobeyed a direction from a senior officer concerning what the offender could say to members of the media. His misleading evidence was concerned with whether he had contacted anyone in respect of the matter under investigation. The circumstances of the offender losing his career, of the suffering of the offender's family as a result of the matters and the delay of eighteen months between offence and prosecution all caused the Court to decide that a sentence of imprisonment was not required. The offender was sentenced to a fine of $2,000 for the common law offence and 200 hours community service for the misleading evidence charge. Whilst there is evidence of loss of career, suffering by the offender's family and delay in prosecution for a similar period here, the breach of trust and deception was far greater and occurred over a more prolonged period. This in turn increases the need for deterrence to be reflected in the sentence. 68In R v Phillip William Smith [2011] NSWDC 38, a Police officer was sentenced to a suspended sentence of imprisonment for 15 months for the offence of perverting the course of justice. That offence attracted a longer maximum penalty of 14 years imprisonment. The delay of about two years between offence and charge was significant in the Court's decision to impose a sentence other than full-time imprisonment. 69In DPP v Mourched [2010] NSWLC 2, the offender was sentenced for one offence of publishing a false statement for a financial advantage under section 178BB(1) of the Crimes Act 1900. The maximum penalty was five years imprisonment with a jurisdictional limit of two years as the value involved was $955,620. The offender was sentenced to imprisonment of a minimum period of 12 months and 23 days with an additional term of 4 months and 8 days to be served by way of home detention. In that case, there was the one offence and no position of trust held by the offender. 70In Retsos v R [2006] NSWCCA 85, the offender pleaded guilty to three counts of knowingly giving false evidence to the ICAC and to one count of aiding and abetting the corrupt solicitation of a pecuniary benefit which carried a maximum penalty of seven years imprisonment. The offender was sentenced to a total of three years imprisonment to be served by way of periodic detention. In that case, unlike the present case, the offender was not himself in a position of trust.
SECTION 3A OF THE ACT 71Section 3A of the Act provides an exhaustive list of purposes of sentence. The weight to be accorded to each matter necessarily depends on the circumstances of the particular case. 72In this case, the offences involve repeated breaches of trust, abuse of public position and a disregard for the administration of justice. These matters require that the sentence strongly reflect general deterrence. As the Crown submits, the community would be justified in having an expectation that when the integrity of the administration of justice is attacked, condign punishment ought be imposed to deter further crimes. The subjective features, whilst relevant in the sentencing exercise, cannot overshadow the requirement to reflect the seriousness of the criminality in determining the appropriate sentence: R v Harmouche [2005] NSWCCA 398; Carruthers v R [2007] NSWCCA 276. 73In R v Myers (NSWCCA, 13 February 1990, unrep), his Honour, Justice Hunt, with whom their Honours Justices Finlay and Allen agreed, stated: But all subjective considerations such as these are, as this Court has often said, necessarily subsidiary to the powerful obligation of the courts to prevent the commission of these crimes in the future: R v Rushby [1977] 1 NSWLR 594 at 597-8. Personal rehabilitation is important, but more important is public deterrence. 74The need for condign punishment is also required to achieve general deterrence because of the difficulties in detecting and prosecuting such offences. In R v Aristodemou (NSWCCA, 30 June 1994, unrep), his Honour Justice Badgery-Parker was considering an appeal against a sentence imposed for an offence against section 87 of the Independent Commission Against Corruption Act 1988 (NSW), the same offence as sequence 4 here. His Honour stated: Any person who commits an offence of perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an [Independent Commission Against Corruption] Inquiry should do so in the clear understanding that if his offence is detected he will go to gaol except in very particular circumstances.
THE SENTENCES 75Considering all of the aggravating, mitigating and subjective factors, if the sentences are to appropriately reflect the seriousness of the criminality, as they must, then only custodial sentences are appropriate for each of these offences. This also takes into account the admonition provided in section 5 of the Act. 76The next consideration is the appropriate length of each sentence and the accumulation of the sentences to reflect the totality of criminality. This determination is to be made without regard to the manner in which the sentence is to be served: R v Zamagias [2002] NSWCCA 17 at [26]. The discount of 40 percent will be applied in reaching the term of the sentences. The Form 1 matter is taken into account in aggravating the sentence for sequence 4. Whilst the maximum jurisdiction of the Local Court is constrained to a legislated jurisdictional limit, the seriousness of the criminality is determined by reference to the maximum penalty and not the jurisdictional limit: R v Doan (2000) 50 NSWLR 115. 77The sentences imposed are as follows: Sequence 2: Imprisonment of 7 months as a fixed term. Sequence 3: Imprisonment of 7 months as a fixed term to be partly consecutive upon the sentence for sequence 2 by one month. Sequence 6: Imprisonment of 7 months as a fixed term to be partly consecutive upon the sentence for sequence 3 by one month. Sequence 4: Imprisonment with a non-parole period of 8 months and a total term of 14 months. Special circumstances are found in altering the statutory ratio between the non-parole and parole periods in light of the offender's on-going need for mental health treatment. This sentence is to be partly consecutive upon the sentence for sequence 6 by two months. 78The total sentence therefore is one of a non-parole period of 12 months with a total term of 18 months imprisonment. 79It now must be determined how the sentence is to be served. Whilst the Crown in this case submits that only a custodial sentence is appropriate, it does not submit that the sentence can only be one of full-time custody. The Crown suggests that the Court might find particular circumstances which derogate from the usual need to impose a full-time sentence of imprisonment. 80Suspending the sentences of imprisonment under section 12 of the Act would be counterproductive to the need for general deterrence in this case. A sentence served by way of an intensive correction order equally would not be sufficiently reflective of that need for general deterrence. The next most serious custodial option is home detention. This option is the last alternative before a full-time sentence is applied. Home detention involves a severe restriction of liberty where an offender is not entitled to leave the home other than as approved by the Department of Corrective Services for such matters as medical appointments. Prisoners on home detention undergo constant monitoring and, where appropriate, mandatory counselling and treatment. 81Whilst the need for specific deterrence is of fundamental significance in this case, it must be balanced against some subjective features. This would be the offender's first time in custody. The offender has experienced considerable delay in the prosecution of these matters in which time she has embarked on a course of rehabilitation and retrained and been employed as a teacher. The offender has been seeking treatment for her depression and anxiety. Her family, including three children, two of whom are at school, have suffered. Whilst it was conceded by counsel for the offender that this did not amount to exceptional hardship to third parties, it is relevant in determining the manner in which a custodial sentence is to be served: ICAC v Karkowski. 82It is therefore appropriate, subject to a suitability assessment by Probation and Parole, that the sentences of imprisonment be served by way of home detention. The proceedings will be adjourned until 18 October 2012 to enable the assessment to be completed. The offender must report to Probation and Parole forthwith. Deputy Chief Magistrate J Culver Downing Centre Local Court 6 September 2012
Note: on 15 February 2013, the District Court (per Blackmore DCJ) allowed an appeal against sentence and re-sentenced the offender to concurrent sentences of imprisonment, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, for a total period of 1 year 2 months. 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: 29 May 2014
Director of Public Prosecutions
Paluzzano
(2011) 244 CLR 120
(2000) 50 NSWLR 115
(1999) 46 NSWLR 346