DPP v Con Kostakidis

Aoun v R [2007] NSWCCA 292 Lozanovski v R [2006] NSWCCA 143 SZ v R [2007] NSWCCA 19 R v Aristodemou (Unreported) NSWCCA 60804 CASES CITED: R v Bulliman CCA (Unreported 25.2.1993) R v Cartwright (1989) 17 NSWLR 243 R v Einfeld [2009] NSWSC 119 R v Thomsen & Houlten (2000) 49 NSWLR R v Todd [1982] 2 NSWLR 517

REPRESENTATION: M. Gibson Solicitor - Director of Public Prosecutions C. Kapsis, Kapsis & Associates Solicitors for the offender

On 15th October 2009 the offender was charged pursuant to Section 107 of the Police Integrity Commission Act 1996 with 3 counts of giving false evidence before the Police Integrity Commission. An offence charged under these provisions attracts a maximum penalty of 5 years imprisonment when prosecuted on indictment. On 12th January 2010 the Director of Public Prosecutions informed the Court that it did not intend to elect to proceed on indictment. In such circumstances Chapter 5 of the Criminal Procedure Act 1986 has application. The offence comes within Table 1 under that Act and attracts a maximum penalty of two years imprisonment for an individual offence when dealt with by way of sentence in the Local Court. The exercise of this part of the jurisdiction is also constrained in respect of multiple offences by Section 58 of the Crimes (Sentencing Procedure) Act 1999. The Court cannot impose cumulative sentences that would exceed 5 years imprisonment.

On 23rd February 2010 the offender entered a plea of guilty to each of the charges brought against him. It is clear from the Court record that the pleas of guilty were entered at the earliest available opportunity. The offender is in those circumstances entitled to a significant discount on sentence reflecting the utilitarian value of the plea. Such a plea is to be considered against the background of the Guideline Judgment R -v- Thomsen & Houlten (2000) 49 NSWLR. The relationship between the expeditious acknowledgment of his untruthfulness whilst still under cross examination before the Police Integrity Commission and the timing of the plea before this Court persuades me that the appropriate discount for the utilitarian value of the plea should be quantified at 25%. I turn to the facts.

A statement of agreed facts is attached to the court file. Put simply in 2006 the offender was a serving member of the New South Wales Police Force. At a private hearing before the Police Integrity Commission he was questioned about the employment of another police officer's wife at a café operated by the offender. His initial evidence under oath on 4th September 2006 was that she had worked for him. He recanted on 8th September and when asked why he had lied responded that he had just panicked. The two other counts relate to the provision of a police issue extendable baton by the offender to a male associate without authority. The nature of this transaction was disclosed in a recorded telephone conversation that took place on 4th July 2006. On 13th October 2006 the offender was asked about the telephone call. In answer the offender asserted he was talking about a hunting knife. He was asked whether the article was in fact a police issue extendable baton he again asserted it was a hunting knife he had confiscated from an unknown person in Cabramatta. During the course of cross-examination he admitted that in fact he had been talking about the baton and that his earlier evidence had been false.

Section 21A of the Crimes (Sentencing Procedure) Act 1999 is divided into two parts. Section 21A(2) requires the Court to take into account identified aggravating factors. Section 21A(3) identifies a range of mitigating factors to be taken into account as part of the subjective considerations relevant to sentence.

There are no aggravating factors relevant to Section 21A(2). The offender is however entitled to have a number of mitigating factors taken into account.

It is clear the offences were relatively spontaneous in nature and not part of a planned or organised criminal activity. The offender's explanation for lying under oath on the first occasion that he "panicked" is objectively likely to be an accurate assessment on his part Crimes (Sentencing Procedure) Act 1999 S.21A (3)(b).

The offender is entitled to be regarded as a person with no prior convictions and as a person of prior good character. Given the effluxion of time since the commission of the offences I accept he is unlikely to re-offend. Ibid S.21A (3)(f), (g), (h)

I note that since the commission of the offences he has been charged with and convicted of conduct different in kind but associated with the initial untruth regarding the employment of a fellow officer's wife at his café. This does not affect the assessment of his character. So much is clear from the decisions of Lozanovski -v- R [2006] NSWCCA143 at [12] and Aoun -v- R [2007] NSWCCA 292 at [22].

Since the commission of these offences the offender has left the Police Force. This is no surprise. He has however re-integrated himself within the community. Since 2007 he has worked continuously within the funeral industry. The Pre Sentence report taken into consideration with the psychological report confirms that he has developed a level of regard on the part of both his employer and from within the Greek community for his contribution in this sensitive area of community life. According to the Probation and Parole Service there is no need for anything other than a low level of supervision. I accept from the combined effects of both reports that he has good prospects of rehabilitation and is genuinely remorseful for his conduct. ibid S.21A (3) (h) (I)

Section 21A(3)(k) also applies in these proceedings. I have already referred to the utilitarian value of his plea of guilty earlier. The offender is not entitled to have the penalty further mitigated simply because it is referred to in statutory form in Sections 22 and 21A(3)(k) of the Act. To do so would result in a degree of double counting.

Importantly for the offender in these proceedings the provisions of Section 21A(3)(m) operate to further mitigate the penalty. In accordance with these provisions and with Section 23 of the Act a Court may exercise its discretion to impose a lesser penalty for assistance to authorities. The Crown rightly concedes that Section 23(2) is directly relevant. The offender provided assistance by way of giving evidence against another person.

As the Court said in R -v- Cartwright (1989) 17 NSWLR 243 at 252: "It is clearly in the public interest that offenders should be encouraged to supply information to authorities which will assist them in bringing other offenders to justice and to give evidence against those offenders in relation to whom they have given such information. In order to ensure that such encouragement is given an appropriate reward for providing assistance should be granted…..The information which he gives must be such as could significantly assist the authorities. The information must of course be true." There is nothing before this Court that when the offender gave evidence he did not do it truthfully. In the first instance his involvement in proceedings against an accused person resulted in a conviction. That the conviction was overturned on appeal where, so I believe, the offender was not required to give viva voce evidence, does not detract from his contribution on behalf of authorities.

SZ -v- R [2007] NSWCCA 19 is authority for the proposition that the combined effect of the discount for the utilitarian value of the plea and assistance to authorities should not exceed 50%. Consideration of the extent of the combined discount however is to be tempered by the fact that providing assistance to authorities cannot operate to reduce the ultimate penalty to one that fails to reflect the objective seriousness of the offence or the offending. So much is clear from Section 23(3) of the Act.

The penalty in these matters is also in my view affected by delay on the part of the prosecution in commencing the proceedings. The offences were committed in September and October 2006. These proceedings were not commenced until November 2009.

In R -v- Todd [1982] 2 NSWLR 517 at 519 the Court set out the principle in relation to the impact of delay on sentence: "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 otherwise be a quite undue degree of leniency being extended…"

There is no doubt in my mind that as a result of the increased level of discount, delay on the part of the Prosecution and the strong subjective features relative to the offender which mitigate the ultimate penalty that these proceedings require a departure from what might be described as principles of general application to prosecutions of this nature.

As a matter of principle the observations of superior courts in R -v- Einfeld [2009] NSWSC 119 AT [183] and R -v- Aristodemou (Unreported) NSWCCA 60804 of 1993 point towards the paramount considerations of general deterrence and denunciation justifying the imposition of custodial outcomes for giving false evidence. As the Court said in R -v- Bulliman CCA (Unreported 25th February 1993): " False evidence strikes at the whole basis of the administration of justice and indeed it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for making of false statements on oath in which the offence or offences are committed." To reiterate the observations made in Aristodemou: "The purpose of an appropriate sentence in this class of case is not only to punish the offender but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case. Any person who commits an offence of perjury or false swearing in the course of judicial proceedings … should do so in the clear understanding that if this offence is detected he will go to gaol except in very particular circumstances." I make it perfectly clear to the offender that but for the assistance to authorities and the period of delay the application of those principles to his conduct, irrespective of the mitigating factors found in his favour would warrant condign punishment. In the very particular circumstances of these proceedings, to borrow from Aristodemou (supra) assistance to authorities together with the utilitarian value of the plea justifies a discount on sentence of 35%. Delay in prosecution taken into account with the relevant subjective features also operates to mitigate the penalty that would otherwise have been imposed and to which the identified discount is to be applied.

The appropriate penalty had the prosecution been instituted and brought to finality with appropriate expedition would have been a sentence of imprisonment of 3 months. This is based on the relatively minor nature and purpose of the false evidence and the rapidity with which the offender retracted his initial untruthfulness. Once the discount is applied and bearing in mind the need to take into account Section 5 of the Act to consider whether there is no other alternative I am persuaded to the view that the threshold set out in those provisions is not met such as to warrant the imposition of a gaol sentence. In my view the purposes of sentencing set out in Section 3A and the need to reflect the seriousness of the offending can be met by placing the offender under the supervision of the Court under Section 9 of the Act for a defined period of time. In reaching this conclusion I remind the offender of the introductory words of Section 9 of the Act " Instead of imposing a sentence of imprisonment on an offender the court may.."

The offender is convicted in relation to each offence. In respect of each offence he is released pursuant to Section 9 of the Act to be of good behaviour for a period of two years from today and to appear before this Court for sentence if called upon during that time.

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