Donohue v The Queen [2019] VSCA 160

1 On 10 September 2018, following a trial in the County Court, the applicant was convicted of 12 charges of making a false document, three charges of attempting to pervert the course of justice and four charges of perjury. On 25 September 2018, the applicant was sentenced as follows:

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

2 On 9 December 2018, the applicant filed an application for an extension of time within which to seek leave to appeal against his sentence. The grounds of the extension of time application are that the applicant did not realise, until he was advised on 27 November 2018, that an original application faxed to the Court on 16 October was not received by the Court. As the applicant put it:

I ... sincerely believed that my application had been filed well within the necessary 28 days.

3 The applicant's proposed grounds of appeal are as follows:

1. The sentence of 4 years and 5 months with a non-parole period of 2 years and 9 months is manifestly excessive, in light of the following particulars:

(a) the hardship caused to my wife and son, both of whom have physical and/or intellectual disabilities, and for whom I am the full time carer (prior to incarceration);

(b) the financial hardship on my wife and son, without my Centrelink disability pension, as a result of my incarceration.

1. The sentencing judge made an error in assessing the medical evidence of my mental health conditions.

4 In April 2010, the applicant was charged by an informant, Mr Bronstein, with dishonesty offences ('the Bronstein charges'). In July 2010, these charges were listed at the Ringwood Magistrates' Court. On the day of the listing the charges were adjourned for a plea of guilty on 27 August 2010.

5 On 8 July 2010, the applicant prepared a false document dated 8 July 2010, addressed to the presiding magistrate at the Ringwood Magistrates' Court purporting to be a letter from Dr Bill Davis of the Alfred Hospital's William Buckland Radiotherapy Centre ('the WBRC'). The letter stated that the applicant had been a patient since 2004, that he was being treated for an inoperable malignant brain tumour, and that it was anticipated that he would need to be treated for several more years.

6 On 12 July 2010, the applicant prepared a false document dated 12 July 2010 addressed to the presiding magistrate at Ringwood Magistrates' Court purporting to be a letter from Dr Rodney Farnbach, a consultant psychiatrist who had treated the applicant. The letter stated that the applicant suffered from ongoing psychiatric issues including post-traumatic stress disorder over the last 24 years. It also stated that the prognosis was that the applicant was unlikely to recover, and would require regular treatment for the rest of his life.

7 On 27 August 2010, the applicant's case was adjourned until 13 September 2010 to obtain reports in respect of his sentencing. On 10 September 2010, the Bronstein charges were further adjourned to 4 October 2010 for sentence.

8 On 6 September 2010, the applicant prepared a false document dated 6 September 2010 addressed to the presiding magistrate at Ringwood Magistrates' Court purporting to be, again, from Dr Farnbach. The letter referred to the earlier letter of 12 July, and stated that the applicant was suffering from ongoing psychiatric issues including post-traumatic stress disorder. The letter contained an opinion that a custodial environment would be extremely counteractive to the applicant's treatment and would pose a severe risk of suicide. It also stated that it was extremely unlikely that the applicant would re-offend.

9 On 1 October 2010, the applicant prepared a false document addressed 'To whom it may concern'. The document purported to be, again, from Dr Davis of the WBRC. The letter stated that the applicant was admitted to hospital on 4 October 2010, and that he was required to stay in hospital for about a week and would be unable to resume his normal activities for some four weeks.

10 On 4 October 2010, the applicant did not appear at court and a warrant was issued. The warrant was executed on 28 October 2010, and a new hearing date of 20 December 2010 was fixed.

11 On 15 December 2010, the applicant prepared a false document addressed to the coordinator's office at Ringwood Magistrates' Court purporting to be, again, from Dr Davis. The letter referred to the hearing for 20 December 2010, and stated that the applicant was required to be admitted to hospital for surgery on 19 December 2010 and would be unable to resume his normal activities for a period of six weeks.

Charge 6: attempting to pervert the course of justice

12 The letters from Dr Davis and from Dr Farnbach were false. Their contents in relation to the applicant's health were also false. The applicant sent the letters to the Ringwood Magistrates' Court for the purpose of misleading the court as to the true status of his health and to avoid the final resolution of the Bronstein charges.

13 The Bronstein charges were adjourned from 20 December 2010 until 7 February 2011. The applicant then embarked upon a second phase of making false documents to avoid the finalisation of the Bronstein charges.

14 On 3 February 2011, the applicant prepared a false document (incorrectly dated 3 February 2010, it was supposed to be 2011) addressed to the presiding magistrate at the Ringwood Magistrates' Court purporting again to be from Dr Davis. The letter stated that the applicant was admitted to hospital on 2 February 2011 and, after surgery performed on 4 February 2011, would have to stay in hospital for an indefinite period.

15 The charges were adjourned from 7 February 2011 to 7 April 2011. On 7 April 2011, the applicant did not appear. A warrant was issued and then executed and a new date of 6 June 2011 was fixed for the hearing.

16 On 31 May 2011, the applicant prepared a false document dated 31 May 2011, addressed to the Ringwood Magistrates' Court purporting, again, to be from Dr Davis. The letter stated that the applicant was currently an inpatient, would remain in hospital for two weeks, and would be unable to make his court appearance on 6 June 2011.

17 On 6 June 2011, the case was adjourned until 8 August 2011.

18 On 5 August 2011, the applicant prepared a false document dated 5 August 2011, addressed to the Ringwood Magistrates' Court purporting to be, again, from Dr Davis. The letter stated that the applicant was currently an inpatient, would remain in hospital for two to three weeks, and would be unable to make his court appearance on 8 August 2011. The letter also stated that the applicant's condition was terminal, that his cancer treatments were directed at improving his quality of life rather than a cure, and that the hospital would send the court a death certificate when that occurred.

19 On 8 August 2011, the case was adjourned to 22 November 2011.

20 On 25 October 2011, the applicant prepared a false document dated 25 October 2011, addressed to the Ringwood Magistrates' Court again purporting to be from Dr Davis. The letter stated that the applicant had entered palliative care and would be in that care until his death. The letter again stated that the hospital would send the court a death certificate when this occurred.

21 On 22 November 2011, the case was adjourned until 2 March 2012.

22 On 27 February 2012, the applicant prepared a false document dated 27 February 2012, addressed to the Ringwood Magistrates' Court purporting to be, again, from Dr Bill Davis of the WBRC. The letter again stated that the applicant had entered palliative care, would be there until his death, and consequently that he was unable to attend the court hearing. On 2 March 2012, the letter was provided to the Ringwood Magistrates' Court. The applicant was not present and the hearing was adjourned sine die.

Charge 12: attempting to pervert the course of justice

23 The five letters relating to charges 7 to 11 were provided to the court for the purpose of misleading the court as to the applicant's current health, and so as to avoid the resolution of the Bronstein charges.

24 As at March 2012, the Bronstein charges were adjourned indefinitely. The applicant, however, came to the attention of another police officer, Mr Phillips, in relation to further offending. As a result of Mr Phillips' enquiries about the applicant, he discovered the status of the Bronstein matters. Mr Phillips then contacted Mr Bronstein. On 11 May 2013, the applicant was served with a notice of intention to proceed, and the Bronstein charges were again listed for hearing - this time, on 3 June 2013.

25 As the judge put, the applicant then 'returned to [his] practice of preparing documents in the name of Dr Bill Davis'.[1]

26 On 30 May 2013, the applicant prepared a false document dated 30 May 2013, addressed to the Ringwood Magistrates' Court purporting to be from Dr Davis. The letter stated that the applicant was currently, and would be for the next three or four weeks, an inpatient and as a consequence would not be able to attend his court hearing on 3 June 2013. It also stated that the applicant's condition was terminal. On 3 June 2011, this letter was presented to the Ringwood Magistrates' Court, and the hearing was adjourned.

27 On 30 December 2013, the applicant prepared a document dated 30 December 2013, purporting to be from Dr Davis. The letter stated that the applicant was a long term patient and would be required to stay in hospital for the next three to four weeks. Consequently he could not attend his court hearing then fixed on 15 January 2014. The letter also stated that the applicant was in palliative care, would be in that care until his death, and that a death certificate would be forwarded to the court when that occurred. On 6 January 2014, this letter was provided to the court, and the case was adjourned until 17 February 2014 for the police to make enquiries.

Charge 15: attempting to pervert the course of justice

28 The two letters which were the basis of charges 13 and 14 were provided to the court for the purpose of misleading the court as to the applicant's then state of health, and to avoid the resolution of the charges then before the court.

29 On 20 August 2014, the applicant was interviewed about the false medical documents. He denied having seen them, and stated that they would have been obtained and sent by the Defence Signals Directorate. The applicant said that he had the medical conditions referred to in the document, but that he had been treated under another name because of his 'security work with the Defence Signals Directorate'.

30 The applicant's computer was seized by police and examined. Copies of the various false documents were located on his computer. The applicant admitted that he prepared each of the false documents. His evidence at trial, however, was that the conditions and treatment set out in the letters were true, but he could not reveal the names of his treating doctors or the name he was treated under for 'national security reasons'. Plainly, by their verdicts, the jury rejected this evidence.

31 After the police interviewed the applicant, he changed approach to the avoidance of the finalisation of the charges then outstanding against him. The facts constituting the perjury charges were as follows.

32 On 26 September 2014, the applicant attended at the Ringwood Magistrates' Court and signed a statutory declaration in which he knowingly and falsely swore that he was required for urgent military duty, and consequently he would be unable to attend a court hearing on 29 September 2014.

33 On 24 October 2014, the applicant again attended at the Ringwood Magistrates' Court and signed a statutory declaration in which he knowingly and falsely swore that he was required for urgent military duty, and consequently he would be unable to attend a court hearing on 27 October 2014.

34 On 21 May 2015, the applicant again attended at the Ringwood Magistrates' Court and signed a statutory declaration in which he knowingly and falsely swore that he was required for special military duty and consequently he would be unable to attend a court hearing on 25 May 2015.

35 The final charge of perjury was on 12 November 2015. On that day, the applicant attended at the Knox police station and signed a statutory declaration in which he knowingly and falsely stated that he was required to go on 'interstate federal government duty' and consequently he would be unable to attend his court hearing on 16 November 2015.

36 Extensive and detailed inquiries (including the searching of security data bases) revealed the falsity of the matters sworn to and relied upon by the applicant in his statutory declarations. The applicant had not been involved in any military duty, special military duty or federal government duty as alleged by him. As the judge put it, the applicant's evidence at trial, that he was acting on behalf of the federal government in secret special military or intelligence duty, was a fiction created by him so that the Bronstein and Phillips matters would not be finalised.[2]

37 The applicant was born in September 1952. At the time of his offending, he was aged between 57 and 63. At the time of sentencing, he was 66.

38 The applicant was educated to a year 12 level. After he left school, he joined the army - where he remained for six years before being discharged in 1976. Following his discharge from the army, the applicant engaged in a number of employments, generally in a management and business development field.

39 At the time of sentencing, the applicant was married and lived with his wife and a son (CD) who suffers from Down Syndrome and requires care and supervision. The family was in receipt of three pensions: a disability pension for the applicant, an aged pension for the applicant's wife and a disability pension for CD. The applicant's wife suffers from epilepsy, asthma and diabetes. In addition, she had spinal surgery in 2015 which reduced her mobility and caused her to suffer ongoing pain. While living with the applicant and his wife, CD attended a day centre.

40 On the plea, the applicant admitted the following prior convictions:

• On 6 June 1985, at the Melbourne Magistrates' Court, he was dealt with for 20 charges of forging documents, 20 charges of altering documents and 18 charges of imposition. He was fined $20 on each of those charges and ordered to pay reparations in the sum of $1169.70.
• On 7 April 1998, at the Melbourne County Court, he was convicted of three charges of defrauding the Commonwealth, sentenced to six months imprisonment, and released immediately on a recognisance release order for a period of four years. He was ordered to pay $68,790.52 reparation on that occasion.
• On 27 April 2007, at the Melbourne Magistrates' Court, he was dealt with for 11 charges of obtain financial advantage by deception and fined a total of $2500.
• On 19 January 2009, at the Ringwood Magistrates' Court, he was dealt with for obtaining property by deception, and placed on a community based order for 12 months and ordered to perform 75 hours of unpaid work.

41 During the course of the plea hearing, counsel for the applicant tendered a number of documents:

• two reports[3] from a clinical psychologist, Ms Carla Lechner, who had examined the applicant in December 2016 and again in June 2017;
• a report from a clinical psychologist, Ms Judy Tomlinson, to whom the applicant had been referred by his general practitioner in February 2016;
• a report from Dr Hemlata Ranga, a consultant psychiatrist, who examined the applicant in December 2017 and February 2018 for the purposes of a pre-sentence report for a hearing in the County Court in March 2018;
• a reference from Ms Belinda James, the general manager of Interchange Outer East;
• a letter from Dr William Longworth certifying that CD has several issues requiring a full-time carer and requiring assistance with activities of daily living. The letter notes that CD's full-time carer is the applicant, and CD would need an alternative carer in the applicant's absence; and
• another letter from Dr Longworth certifying that the applicant's wife has several problems that make it difficult for her to manage at home (the letter identifies the applicant's wife's epilepsy, spinal surgery, a chronic cough and diabetes - stating that the applicant's wife needs full-time caring by the applicant 'for most things' and that she needs an alternative carer when the applicant needs to leave the house).

42 The judge commenced his reasons for sentence with a description of the history of the applicant's proceeding, the circumstances of the applicant's offending and the applicant's personal circumstances.[4] In the course of setting out these matters, the judge noted that the offending that was charge 1 on the indictment occurred a mere seven months after the completion of the community based order imposed at Ringwood Magistrates' Court in January 2009.[5] The judge also described the applicant's offending as 'persistent over a long period of time' and offending that was continued after the applicant knew he had been caught out in relation 'to the false medical letters'.[6] As the judge put it:

It is brazen offending that you thought would not be detected because offending of this nature is hard to detect and even harder to prosecute.[7]

43 Under the heading 'Sentencing Considerations', the judge said:

The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.[8]

44 The judge said that he was also required to balance the interests of the community in denouncing the applicant's criminal conduct with the interests of the community in seeking to ensure, as far as possible, that the applicant as an offender was rehabilitated and reintegrated into society.[9] In the course of discussing relevant sentencing considerations, the judge returned to the plight that the applicant's wife and son would face upon the applicant's incarceration. The judge accepted that there would be increased hardship for them, but concluded that on a proper assessment there was no level of 'exceptional circumstances' which required him to exercise mercy.[10]

45 Next, the judge observed that the crime of perjury was 'a very serious one'.[11] The judge said that the applicant's charges of perjury 'were committed in a curial proceeding and [struck] at the very heart of the administration of justice'.[12]

46 The judge observed that there was a degree of overlap in the charges - in the sense that charges 1-5 were the basis for charge 6; charges 7-11 were the basis for charge 12; and charges 13 and 14 were the basis for charge 15.[13]

47 The judge then discussed the principle of totality, making reference to the fact that courts have shown an aversion to the imposition of crushing sentences.[14]

48 The judge concluded his reasons for sentence as follows:

I accept that you will find imprisonment more difficult due to your post-traumatic stress disorder and combined with the knowledge that your family is suffering hardship. A hardship that you have imposed upon them. I note also that you reported that you coped well with your last imprisonment to Dr Ranga.

I consider your prospects of rehabilitation as guarded. You have shown no remorse for your offending in these charges. You have, over a long period of time, committed dishonesty offences. On your current history your criminal habits will be hard for you to break or control.

Consideration of general and specific deterrence, denunciation of your criminal conduct and just punishment requires a significant term of imprisonment to be ordered.[15]

49 An application for an extension of time within which to seek leave to appeal against sentence requires consideration be given to the reasons for the delay and the merits of the proposed appeal.[16]

50 In the present case, it may be accepted that the applicant's delay has been adequately explained. The difficulty for the applicant is that, even if he were able to establish some error in his sentence, there is no prospect that this Court would impose a less severe sentence than the sentence first imposed.[17] In our view, if the sentence imposed by the judge is within range then it is at the very bottom end of the range.

51 The offence of attempting to pervert the course of justice carries a 25 year maximum sentence. The crime is a serious one, and the applicant's offences (charges 6, 12 and 15) were serious examples of it. While the maximum penalty for perjury is only 15 years, the same may be said of that crime and the applicant's commission of it on four separate occasions (charges 16, 17, 18 and 19). The sentences imposed, and orders for cumulation made, in respect of these charges were extremely modest (particularly in circumstances where no cumulation was ordered in respect of the remaining 12 charges).

52 The applicant's offending was brazen, persistent and struck at the heart of the administration of justice. Putting to one side the very relevant considerations of general deterrence, denunciation and just punishment, the applicant's history of offending showed that specific deterrence loomed large in the sentencing synthesis. The very modest sentence imposed by the judge can only be explained by the fact that he fully took into account all of the matters that the applicant relied upon in mitigation of sentence. No lesser sentence could reasonably have been imposed. Indeed, as we have already observed, it would have been open to the judge to impose a significantly greater sentence than the one he in fact passed.

53 Moreover, we should say for completeness that we are thoroughly unpersuaded that the judge erred in any of the ways suggested by the applicant in his grounds of appeal and written case. If the applicant were, however, to be granted leave to appeal, it seems to us that this would be a case where the Court would subsequently have to warn the applicant that he faced the possibility of a more severe sentence being imposed than that first imposed if he pursued his appeal.[18]

54 As the applicant's proposed appeal enjoys no prospects of success, it would be futile to grant him the extension of time he now seeks. Accordingly, his application will be refused.

55 The application for an extension of time within which to seek leave to appeal against sentence is refused.

[1] DPP v Donohue [2018] VCC 1578 ('Reasons') [33].

[3] Dated 12 December 2016 and 5 July 2017.

[16] Jopar v The Queen [2013] VSCA 83; (2013) 44 VR 695, 707 [59]; Madafferi v The Queen [2017] VSCA 302 [11]; Chen v The Queen [2017] VSCA 335 [22].

[17] Cf s 280 of the Criminal Procedure Act 2009.

[18] See s 281(3) of the Criminal Procedure Act 2009.