DPP v Aydin & Kirsch [2005] VSCA 86

"5. The threats were first made by you, Aydin, to Archbold in a short conversation at Melbourne Magistrates' Court. What you said was to the following effect, 'You know I'm Turkish, Nick's Bulgarian and Sammy's Lebanese'. I interpolate: you were referring to Nikolai Radev and Houssam Zayat. You continued 'With our cultures, if someone wants to kill you, then you will kill them first'. You then indicated that witnesses who were to give evidence against Zayat and others in a prosecution arising out of an incident at the Stamford Plaza Hotel, had made statements recanting their police statements. You then said 'It could get dirty, Ben. We need to talk off the record and work out something. Give us a plea to a few charges, time already served, and then withdraw the rest. You know we will sue you. We will charge you criminally and civilly if you don't. We will put caveats on your properties'. You told Archbold you [were] aware his parents owned a hotel. You then made mention of the question of bail. Archbold was alarmed by this conversation. He reported it to his superiors. He was immediately fitted with a covert recording device and then sought you out in order to continue the conversation. During the recorded conversation you told Archbold of a 'combined tactic' to get him 'out of the way'. This clearly meant out of the investigation Archbold was conducting into the activities of a number of clients of Yiannoulatos lawyers.

6. You told Archbold 'No one wants to deal with you because you're a brick wall, you're always nah, nah, nah, don't want to talk, not interested. You know what I mean'. You said you were holding back criminal and civil charges against Archbold, to be delivered to his home in Coburg. You made it plain that you knew where he lived. You said questions would be raised about his earnings and how he afforded his lifestyle. You said 'This is a shit fight'. Archbold asked 'How do I get around this?', and you said 'We are reasonable people. Let them serve a bit of time, we will negotiate, we'll do a plea on a couple of charges, time served'. In other words, Archbold was told that unless he was prepared to negotiate a favourable plea for your clients, including Houssam Zayat, he would be sued, criminally and civilly and could expect an examination of his financial affairs.

7. You said to him 'If you come to court opposing bail, the minute you oppose and walk out of those doors, either you will get served there or someone will come to your house and say "thank you very much, you have been served criminally or civilly charges and caveats on your property."'

8. Archbold said 'You can't substantiate any criminal charges against me', to which you replied 'We will just give you a hundred and just hope that one sticks, same game, we will play your game'. You told him certain criminal elements were targeting him. He asked how you had his address and you said 'Trade secret'. You repeated 'They will start setting you up, criminal charges, civil charges. You have got two cases you are prosecuting but at the same time you're defending yourself'. You said 'We'll break you, you know what I mean, because I have to come down hard because I go back and report what happened'. You said 'Ease up, pull up, we'll hit you with everything we have got, criminal, civil, everything we can dig up', and a little later 'They are going to cross-examine you for days and dig up all sorts of shit on you, and if they can't find any, they are going to get some'. Archbold said 'Do I have much of a choice?' and you replied 'You're fucked if you do and you're fucked if you don't'. You said 'This is bail time, we can't afford to fuck around, we have got to produce for the clients, this is it, we go, we go'. You told Archbold that Kirsch had asked you to obtain his private address. I emphasise, this assertion is not admissible against Kirsch. You said you were told by Kirsch that 'We may need it to serve, and who knows if our friends may be interested in it'. Archbold said 'Meaning Radev and that', and you said 'He might be interested in it'. Archbold said 'Kill me, is he capable of that?', you said 'What do you think?'. Archbold said 'I think yes', and you said 'Well, there you go'. You said to Archbold 'I'm going to fight you. I'm not going to sleep. I'm going to follow you. I'm going to video camera you. I'm going to set you up, put some drugs in the car, some money, see you take it'. Archbold said there were 59 charges listed at the Melbourne Magistrates' Court. He asked 'How am I going to be able to just have things disappear?'. You said 'Middap will have the answers to that'. Middap is Kirsch's former name. Again, this is not evidence against Kirsch. You said you would not give Archbold's address to Radev, but you hinted that Kirsch might.

9. Radev was known to be a violent criminal. He had been arrested by Archbold. It was clear from your conversation that you believed Radev had a grievance against Archbold.

10. Archbold again asked you how 59 charges could be made to go away. You said 'I can give you all the answers, right, all the answers on how to do it, I have fixed cases up with all sorts of coppers, but I don't know what the fuck I was doing, I didn't know - I thought what the fuck is going on here, what am I doing, this is not the way it is supposed to be, this is not what I learnt at law school'.

11. Archbold put to him 'If you go back to Middap and you say "He won't play ball, he is going ahead 100 miles an hour", I'll disappear'. You said 'Yeah, that is what I am saying'.

12. As if to underscore the potential danger Kirsch represented to Archbold, you willingly portrayed him as a dangerous man 'Fucked in the head, the mastermind, a mate of Radev, dangerous, a man who knows every crook in the fucking State'. The message was clear. Although you would not give Radev Archbold's address, Kirsch might. At one point you pulled Archbold into an alleyway and patted him down to see if he was wearing a recording device.'

6 His Honour found it unnecessary to decide whether Kirsch was responsible for what Aydin had said before Kirsch joined in the conversation. He sentenced Kirsch on the following basis:

"13. Kirsch later joined the conversation and took control of it. This is referred to as the three-way conversation. As I will explain in a moment, his approach was far more subtle. At one point he told Archbold that Zayat wanted 'pre-emptive action' taken against Archbold. Archbold replied 'Well, I'm glad you didn't just fucking kill me, that you have given me the fucking time of day'. Aydin replied 'That could be arranged too'. Kirsch, I must add, disassociated himself from that comment. I will have more to say about the three-way conversation when I come to consider Kirsch's role.

16. Your role, Kirsch, was a lesser role then than Aydin's. First of all, I do not regard you as being associated with the threat he made in relation to Radev. Therefore, the threats for which you are to be sentenced were threats to charge Archbold with criminal offences, to sue him civilly, to place caveats on his property and to report him to the Taxation Department. I will read parts of the transcript of the three-way conversation in this regard. You suggested to Archbold that he was living beyond his means and that he must have had a source of illicit income. You threatened to report him to the Taxation Department. You told him Yiannoulatos lawyers kept files on a number of police and prison officers. You told him that you were working 16 hours a day typing charges against him. This was not a comment that you expected him to take literally, but it was intended to convey that you were targeting him. You said 'Just as coppers load on charges, the other side has decided to do it'. You said you did not want Archbold to ruin his career. You said you had conducted a ways and means search to compare his income with his lifestyle. You said 'We're sitting on caveats, we're sitting on everything'. You said Archbold was 'the target'. When Archbold said 'We are talking caveats, we are talking criminal charges, we're talking civil charges', you said 'I don't want to do that to you, Ben, but you left yourself open for it. You have got some civil liability problems which are real'. In the same context there was discussion about the outcome of Zayat's bail application. You repeatedly asserted during the interview that you were not asking Archbold to do anything which was improper. The prosecutor submitted to the jury that those reassurances were not sincere and that your purpose, or one of your purposes, was to alarm Archbold in order to obtain a favourable outcome on the Zayat bail application."

The maximum penalty

7 Before turning to counsel's submissions, I shall say something about the significance of a maximum penalty. Mrs Quin submitted that the 25-year maximum shows that attempting to pervert the course of justice can be one of the most serious crimes known to the law.[3] That was part of her argument that 12 months' and 15 months' imprisonment was manifestly inadequate. In R. v. Aydin and Flett[4], it was part of her argument that five years' imprisonment was not manifestly excessive. The maximum penalty is relevant in both cases but, for the reasons that follow, its relevance has to be kept in perspective. One must beware of the fallacy of naïve fractions.

8 There is no gainsaying the importance of the maximum penalty prescribed by Parliament for an offence. It provides authoritative guidance by the legislature as to the relative seriousness of the offence, in the abstract, by comparison with other crimes in the calendar. It was for that reason that maximum penalties were introduced in 1997 for common law offences where the penalty had previously been at large[5] and all the maximum penalties in the Crimes Act and in some other legislation were reviewed.[6] Attempting to pervert the course of justice was one of those offences. It may well be that the seriousness of the offence was sometimes underestimated when the penalty was at large.

9 It must always be remembered, however, that a maximum penalty is prescribed for the worst class, or one of a number of worst classes, of the offence in question.[7] On some occasions, when Parliament increases the maximum penalty, that suggests that more severe penalties should be imposed not just for offences falling within the worst class but over a range (not necessarily the whole range) of cases. That is how the successive increases in the maximum penalty for culpable driving causing death have been understood. On other occasions, an increase in the maximum penalty means only that Parliament has thought of a worst class of case for which the previous maximum was inadequate.[8] Moreover, special considerations apply to some offences. The relative seriousness of theft and handling, for example, cannot be gauged solely by the fact that one carries a maximum custodial penalty of ten years' imprisonment and the other of 15 years' imprisonment.[9]

10 It is because the maximum penalty is important that s.5(2)(a) of the Sentencing Act lists it first among the matters to which a court sentencing an offender must have regard and, if the judge mistakes the maximum, that re-opens the discretion unless the Court of Appeal is satisfied that the mistake could not have materially affected the sentence.[10]

11 Nevertheless, in some cases, the maximum is of less utility than might otherwise be the case. The provisions of the Crimes Act which prescribe a maximum custodial penalty of 25 years' imprisonment certainly show that Parliament regards the worst classes of those offences as very serious indeed, but it is wrong to assume that there is an arithmetical progression from zero to 25 or that such a high maximum is of more than general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale. There are too many other relevant factors, including the circumstances of the instant offence and matters personal to the offender. Even more fundamentally, the worst classes for which a penalty of 25 years' imprisonment is prescribed are, by their very nature, far removed from the circumstances with which the judge is then concerned.

12 It is sometimes said that a judge, in obedience to s.5(2)(a), "steers by the maximum". It is a helpful metaphor, but two things should be said of it. One is that there is a difference between steering by the maximum and aiming at the maximum. The penalty prescribed for the worst class of case is like a lighthouse or a beacon. The ship is not sailed towards it, but rather it is used as a navigational aid. The other is that steering by the maximum may decrease the sentence that might otherwise be imposed as well as increase it, as in Nash v. Whitford.[11] I should add that the metaphor is sometimes used in a different way. Where a mistake as to the maximum penalty was immaterial, the Court says that the judge did not steer by the maximum.

Other considerations

13 The ground of appeal and the particulars in each case are relatively self-explanatory, but more should be said about Kirsch's prior criminal history. He admitted 76 previous convictions and 29 findings of guilt from 17 court appearances between March 1974 and April 1996. He had been sentenced to imprisonment on several occasions, of which the longest term was five years with a minimum term of three years on two counts of being an accessory after the fact to murder. That sentence was imposed in 1991 but the offence was committed in 1986. The 1996 court appearance was without conviction. It is apparent from the sentencing remarks that it weighed with the judge that Kirsch had not been sentenced for any offence committed later than 1986, 18 years before, when he was 29 years of age. Moreover, the previous offences were not of a similar nature to the present, there had been no subsequent offending and there were no charges pending.

14 As Brennan and Toohey, JJ. said in R. v. Rogerson[12], there are many different ways in which the course of justice may be perverted. Mrs Quin acknowledged that the seriousness of attempting to pervert the course of justice depends on the circumstances of the offence. In Aydin's case, she emphasized the threats to a police officer to influence the prosecution of, and the granting of bail to, a man who was on remand for serious assault charges, the aggressive nature of the threats and their multiplicity. Aydin threatened Mr Archbold with a tax investigation of his financial position, criminal and civil proceedings against him in relation to his treatment of Radev and caveats on his property. The most serious threat was the indication that Radev might learn his address. That threat was taken very seriously by Mr Archbold.

15 In Kirsch's case, Mrs Quin again emphasized the threats to a police officer to influence the prosecution of, and the granting of bail to, Zayat and the multiplicity of threats that were made. Although the judge accepted that Kirsch played a lesser role and did not attribute to him the threats associated with Radev,[13] Kirsch was Aydin's mentor and, she submitted, his Honour had given that factor insufficient weight. In both cases reference was made to the importance of general deterrence.

16 Mr Tehan stressed the degree to which Aydin was influenced by Kirsch, reminding us that the judge had said that, if Aydin had been supervised appropriately, he would probably not be standing for sentence. Considerations of parity had largely dictated the sentence and it should not be disturbed. Aydin was 27 years of age, with no previous convictions, at the time of the offending. He came from a disadvantaged background and the conviction meant the loss of his career. He had been diagnosed with depression, which was entitled to weight notwithstanding his Honour's conclusion that it was reactive to his predicament, rather than being more deeply seated.[14] He would serve his sentence in protection.[15]

17 Mr Croucher listed no fewer than 14 factors which, it was said, Kirsch could pray in aid. They included his lesser role and less threatening conduct; his absence of recent offending and the judge's acceptance that he was "determined never to return to prison"; his sincere and passionate belief, however mistaken, that clients of Yiannoulatos Lawyers had been mistreated by police and his obsessive desire, with nothing to gain for himself, to seek redress for their perceived wrongs; the charitable work that he had undertaken, particularly with released prisoners and drug addicts, which was entitled to consideration pursuant to s.6(c) of the Sentencing Act; his poor health, being a diabetic who had had open heart surgery in January 2003 and still required strong analgesia for post-operative scarring; and the impact that his time on remand had had on the accommodation business that he conducted largely for the benefit of disadvantaged individuals whom he genuinely desired to assist.

18 Both counsel referred to the restraint that is to be exercised on a Crown appeal, referring among other cases to R. v. Osenkowski[16], R. v. Boxtel[17], R. v. Clarke[18] and Director of Public Prosecutions v. Leach[19]. It was pointed out that in Director of Public Prosecutions v. Trainor and Cahir[20] Tadgell, J.A., who dissented, said that he would nevertheless not have substituted an immediate custodial sentence.

19 Mrs Quin, too, referred to the mitigatory factors applicable to each respondent. She submitted, in effect, that they were fairly limited. Neither respondent was entitled to the discount that would have followed from a plea of guilty or to the favourable inferences that might have been drawn from such a plea.

20 In sentencing Aydin and Flett for conspiracy to do acts tending and intended to pervert the course of public justice, Judge Douglas took into account the fact that their approaches to Detective Senior Constable Trewavas "were not made in a context of harassment, intimidation or any standover tactics". Nevertheless she sentenced each of them to five years' imprisonment. The conclusion in R. v. Aydin and Flett is that that sentence should be reduced; but, so far as offence seriousness is concerned, the offence committed by Aydin and Kirsch was, particularly in Aydin's case, worse than the offence that Aydin committed with Flett.

Conclusion

21 I accept Mrs Quin's submission that appellate intervention is warranted in relation to both respondents. It is not just that I think that more severe sentences should be passed. That would not be enough. I consider, with great respect, that the sentences that were passed were manifestly inadequate. Not one, but several, threats were made by an articled clerk and a disqualified law clerk in an attempt to induce a police officer to act contrary to his duty. In my opinion, the threats regarding Radev, for which Aydin alone was held responsible, and the need for specific deterrence in his case mean that, notwithstanding Kirsch's greater personal culpability, little difference should be made in the sentences to be imposed on the respondents. I would back his Honour's assessment that Kirsch is unlikely to re-offend.

22 Allowing for the mitigatory factors referred to by counsel, I propose orders in accordance with the following minutes:

Director of Public Prosecutions v. Aydin

1. Allow the appeal.

2. Set aside the sentence imposed by the County Court on 2nd July 2004.

3. In lieu thereof, convict the respondent and sentence him to be imprisoned for two years.

4. Fix a non-parole period of nine months.

5. Make a declaration regarding pre-sentence detention.

This sentence will be overtaken by the sentence to be imposed on Aydin in R. v. Aydin and Flett. There will be a measure of cumulation and a new single non-parole period will be fixed. That somewhat artificial course appears to be required by R. v. Jennings.[21]

Director of Public Prosecutions v. Kirsch

1. Allow the appeal.

2. Set aside the sentence imposed by the County Court on 2nd July 2004.

3. In lieu thereof, convict the respondent and sentence him to be imprisoned for two years.

4. Direct that the whole of that sentence, except 274 days, be suspended for an operational period of three years beginning on 2nd July 2004.

5. Declare that 274 days are to be reckoned as already served under the sentence.

23 Both those proposed dispositions are somewhat less severe than they would otherwise have been, on account of the respondents' having stood for sentence twice at the instance of the Crown.[22] Both respondents should be granted indemnity certificates pursuant to s.15 of the Appeal Costs Act 1998.[23]

24 I agree with Callaway, J.A., for the reasons he has stated, that the appeals by the Director should be allowed and the respondents re-sentenced as his Honour proposes.

25 For the reasons Callaway, J.A. has given I agree that the appeals by the Director ought be allowed, and the respondents be re-sentenced as his Honour has proposed.

26 Instances of the offence of perverting the course of justice do not frequently come before the higher courts. The relative infrequency of such cases and the fact that the offence may embrace a wide spectrum of criminal conduct means that it is difficult for sentencing judges to assess just where in the sentencing "range" for the offence any case ought be regarded as falling.

27 The broad spectrum of such offences was recognised in a recent report the Victorian Parliament Law Reform Committee. The Committee said of the maximum penalty of 25 years' imprisonment in this State that it "undoubtedly represents the high-water mark in sentencing among the Australian jurisdictions".[24] That committee recommended that the maximum sentence for the general offence of perverting the course of justice should be 15 years' imprisonment.[25] The Committee noted that the gravity of the offence can vary greatly due to the "infinitely variable" nature of the conduct which might be involved.[26]

28 In this case and in R. v. Aydin and Flett[27] two experienced judges, in carefully considered sentences for not too dissimilar instances of the offence, came to quite different conclusions as to the appropriate sentences for such offences. As Callaway, J.A. has concluded, and, for the reasons he has given, I agree that in each case the sentence merits intervention by this Court, but in so concluding I acknowledge the difficulty of finding the right sentence in such cases. This is an instance where rather than assisting the sentencing task a very high maximum sentence provides little guidance to the sentencing judge.

[1] [2005] VSCA 85 at [5].

[2] Aydin sought leave to appeal against his sentence, alleging that it was manifestly excessive. We intimated that, if we did increase the sentence, the course he had taken might deprive him of a discount for double jeopardy and prejudice his entitlement to an indemnity certificate under s.15 of the Appeal Costs Act 1998. He sought, and was granted, leave to abandon the application. See and compare R. v. Underwood [2005] VSCA 80.

[3] The maximum is 14 years' imprisonment in New South Wales and between two and seven years' imprisonment in the other States and the Northern Territory. The Victorian Parliament Law Reform Committee has recommended that the maximum be reduced to 15 years' imprisonment, which is and would remain the maximum for perjury: Administration of Justice Offences (Final Report 2004), 69-74.

[4] [2005] VSCA 87.

[5] Crimes Act 1958 s.320.

[6] See the table appended to the Sentencing and Other Acts (Amendment) Act 1997.

[7] Ibbs v. R. [1987] HCA 46; (1987) 163 C.L.R. 447; R. v. Dumas [1988] VicRp 8; [1988] V.R. 65 at 71-72.

[8] Compare R. v. Ma, unreported, Court of Appeal, 18th March 1998 at 10-11.

[9] R. v. Marijancevic [2001] VSCA 188; (2001) 3 V.R. 611 at 615 [13].

[10] R. v. Beary [2004] VSCA 229 at [15]- [21] and [39].

[11] (1972) 2 S.A.S.R. 333 at 334.

[12] [1992] HCA 25; (1992) 174 C.L.R. 268 at 280.

[13] Mrs Quin pointed out that the judge said that perhaps Kirsch was just more cunning. I attach no importance to that. In the first place, it was not, and did not purport to be, a finding, let alone a finding made to the requisite standard. Secondly, in the very same sentence, his Honour said that the difference between the threats for which the two men were responsible was significant.

[14] Aydin was present at the shooting of Houssam Zayat and the assailant had allegedly attempted to shoot Aydin too. A psychologist had expressed the opinion that he was suffering from post-traumatic stress disorder as a result. The judge accepted that that was distinctly possible and said that he was prepared to take it into account to some degree.

[15] In R. v. Aydin and Flett Judge Douglas recorded that, because Aydin intended to give evidence for the Crown in another matter, he was, at that stage, subject to 23 hour lock-down. We were not asked to give him the kind of discount referred to in s.5(2AB) and (2AC) of the Sentencing Act, but rather to allow for the onerous conditions in which he was serving, and would continue to serve, his sentences.

[16] (1982) 30 S.A.S.R. 212.

[17] [1994] VicRp 54; [1994] 2 V.R. 98.

[18] [1996] VICSC 30; [1996] 2 V.R. 520.

[19] [2003] VSCA 96; (2003) 139 A.Crim.R. 64.

[20] [2000] VSCA 249.

[21] [1998] VSCA 69; [1999] 1 V.R. 352.

[22] See R. v. Clarke at 522 point 4; Director of Public Prosecutions v. Cook [2004] VSCA 11; (2004) 141 A.Crim.R. 579 at 589 fn.19 and the cases there cited; and Director of Public Prosecutions v. VH [2004] VSCA 180 at [14], [15] and [26].

[23] Compare fn.2 above.

[24] Victorian Parliament Law Reform Committee "Administration of Justice Offences", Final Report 2004, at 69.

[25] At 74.

[26] At 70.

[27] [2005] VSCA 87.