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