It has long been held that emotional states which account for criminal conduct may be material to the assessment of an appropriate sentence. Aspects of general deterrence may still be addressed by making sentences concurrent, if the concurrency recognises matters subjective to the person being sentenced."
157 No purpose is served by analysing the extent to which the submissions for the Director before the sentencing judge departed from an agreed position. There would have been no departure in contending for a sentence on the second offence which was at least partly cumulative with the first offence. Further consideration of that aspect is unnecessary because it is clear that the sentencing judge considered himself free to assess the relevant level of accumulation, regardless of any position taken on behalf of the Director, either before or during the sentencing proceedings.
158 The applicant sought to call in aid of this ground the analysis undertaken of "principles affecting plea agreements" by the High Court in GAS v The Queen [2004] HCA 22; 217 CLR 198 at [27]-[31]. However, that exegesis does not assist the applicant. GAS makes it clear that the decision to plead to a charge is entirely a matter for the accused person, in the light of professional advice, which is the responsibility of his or her legal representatives: at [29]. Their Honours reiterated that "it is for the sentencing judge, alone, to decide the sentence to be imposed": at [30], citing The Queen v Olbrich [1999] HCA 54; 199 CLR 270. Their Honours said, at [31], that "there may be an understanding, between the prosecution and the defence … but that does not bind the judge" and continued:
"It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel."
159 It is clear in the present case that the sentencing judge formed a view as to the primary facts and drew an inference as to the respective and disparate elements of criminality involved in each offence. His Honour was entitled, indeed required, to undertake that task. In fact, so much was expressly recognised by the Director in the email. He sentenced accordingly. Whether the result was in accordance with the submissions of counsel for the Director or not, there was no procedural flaw in the process. There is no substance in the complaint that the Director departed from a "negotiated" position, nor, if he had done so, that the sentencing process in some way miscarried.
(8) Determining sentences - factors personal to applicant
160 The second ground of appeal asserted that the sentencing judge "failed to pay adequate regard to the exceptional subjective circumstances of the applicant including (i) age, (ii) health, (iii) good character, (iv) the requirement to serve his sentence in protective custody …." The ground also referred to extra-curial penalties and adverse publicity, which have been separately dealt with above.
161 In written submissions, apart from points dealt with elsewhere, little was said other than that the sentence itself was reflective of a failure to give adequate weight to these considerations. That assessment requires an understanding of the appropriate range within which his Honour was sentencing.
(a) evidence before sentencing judge
162 Before turning to those matters, it is convenient to say something more about the personal circumstances. Disregarding the further evidence tendered by the applicant before this Court, there was undoubtedly powerful evidence before the sentencing judge concerning the medical and psychological problems which would be faced by the applicant, if required to serve an extended period in custody. His Honour gave careful consideration to this material at [120]-[153]. He identified the relevant conditions as peripheral neuropathy, chronic cough, prostate cancer, blood irregularities, arthritis, stress and depression: at [122]. He accepted the evidence of Dr Robert Muller, the applicant's general medical practitioner, that he suffered from each of the physical conditions other than prostate cancer: at [127]. He also accepted that, although these conditions had not prevented the applicant from leading an active life in the past, they may do so as he was deteriorating with age: at [127].
163 In respect of the reports relating to prostate cancer, his Honour expressed the view that the cancer was "under control", although the applicant "experienced distressing side effects from the radiotherapy but the side effects are likely to settle with the passage of time": at [135]. The medical evidence relied on for the last proposition was that "usually" dysuria settles with the passage of time, which did not provide any firm basis for concluding that the acknowledged distressing side effects would diminish significantly during the proposed period of incarceration.
164 In relation to the psychological condition of the applicant, his Honour gave careful consideration to the report prepared by Dr Jonathan Phillips, who had by then seen Mr Einfeld as a patient on a number of occasions over approximately 10 years. His Honour reached the following conclusions, at [151]:
"I accept that Mr Einfeld suffers from depression and anxiety. The major, though not the only cause, of his condition is to be found in the events of 8 January 2006 and their consequences. There is no evidence to suggest that he was suffering from depression or anxiety before 8 January 2006, apart from the evidence about his depression in the late 1990s."
165 Although his Honour was not satisfied that there was a real risk of the applicant becoming suicidal, he accepted that his psychological condition was likely to become worse in prison: at [152]. Although he would be able to receive relevant medication, he would not be able to receive psychotherapy of a kind available had he been at liberty in the community: at [153].
166 Further, his Honour accepted the view of a number of the applicant's referees, based on their observations of the applicant, that adverse publicity in the media had had a "devastating psychological effect on him": at [161].
(b) approach to sentencing
167 His Honour dealt with these various matters globally in sentencing the applicant. In sentencing him on the first offence (perjury) his Honour stated at [187]:
" … I take into account the facts of the offence in the Crown statement, my further findings about the objective facts of the offence and my findings about the subjective circumstances of Mr Einfeld, including my findings about his career in the law, his character and his voluntary activities, his age, his physical and mental health, the extra-curial punishment he has sustained, his contrition and the likelihood of any sentence of imprisonment being served on protection in more than usually onerous conditions of custody. I also take into account the principles of sentencing I have stated."
168 He concluded that the sentence should be one of 21 months: at [188]. His Honour dealt separately with the division into a non-parole period and a balance of term: at [190].
169 In relation to the second offence, he stated at [191]:
"… I take into account the facts of the offence in the Crown statement, my further findings about the objective facts of the offence and my findings about the subjective circumstances of Mr Einfeld, which are the same as for the first offence. I also take into account the principles of sentencing I have stated."
170 His Honour concluded that the second offence was more serious than the first and that the appropriate sentence was 27 months: at [195].
(c) degree of accumulation
171 The next step in the sentencing exercise was to determine the question of accumulation or concurrency which he resolved by making the sentence for the second offence partly cumulative, commencing nine months after the commencement of the sentence for the first offence: at [199].
172 In fixing the relevant non-parole periods, his Honour was required to consider whether the statutory formula should apply, so that the balance of term not exceed one-third of the non-parole period. Having concluded that there should be an accumulation of the second sentence on part of the first sentence, his Honour considered that he should make a finding of "special circumstances" which would allow him to adjust the relative proportions of the second sentence. He then considered whether he should find special circumstances on any other basis: at [202]. It is necessary to set out the whole of his Honour's reasoning in that regard:
"[203] Counsel for Mr Einfeld submitted that I should find special circumstances in Mr Einfeld's age, that any sentence of imprisonment would be his first time in prison, the need for protective custody, Mr Einfeld's poor physical and mental health and the likelihood of his health deteriorating while he was in custody.
[204] I have already taken all of these matters into account and given them substantial weight in determining the head sentences for the offences and I am mindful that sentencing judges have been cautioned against double counting for such matters, firstly in determining what head sentence should be set and secondly in finding special circumstances so that the balance of the term of the sentence exceeds one-third of the non-parole period.
[205] However, counsel for the Crown at the sentence hearing did not oppose the making of a finding of special circumstances based on these matters and I consider that I should find special circumstances in these matters. However, because I have already taken these matters into account in determining the head sentences, the allowance for this finding of special circumstances will be fairly small."
(d) allowance for poor health - mandatory custody
173 For reasons which will be explained below, the full sentence imposed for each offence was within the relevant range, given the circumstances of the case. To the extent that the poor health and the psychological condition of the applicant were taken into account in setting the total sentences, they will have resulted, indirectly, in a reduction of the non-parole period. However, his Honour appears to have eschewed taking those factors into account specifically in relation to the minimum periods to be spent in custody. In the circumstances of the present case, they had relevance primarily to the period of mandatory custody.
174 In many cases, it will be wrong to assume that an offender will be released at the end of the non-parole period, or will not be returned, having breached parole, to serve a further period in custody. However, the applicant will be entitled to release at the completion of his non-parole period and his subsequent return to serve a further period is such a remote possibility that it may properly be ignored. In a practical sense, there was no reason to reduce a sentence which would otherwise have been appropriate, on account of health and psychological conditions, to the extent that the sentence was not to be served in custody. It may be that, in that regard, the applicant obtained a benefit to which he was not entitled. There remains the question which he is entitled to raise before this Court, namely whether the period of mandatory custody was excessive. That is a matter to which it will be necessary to return below.
(9) Sentencing range
175 The statistics for perjury available from the Judicial Commission, for the period from January 2001 until December 2007, listed only nine cases in which offenders pleaded guilty, in seven of which a prison sentence was imposed and in two of which a sentence was imposed but suspended. Of the seven cases of imprisonment, the terms varied from less than six months (one case) to between 30 and 36 months (one case). The most common sentence was in the range of six to 12 months, with one sentence each between 12 and 18 and between 18 and 24 months. In relation to consecutive terms, there were only two cases, one receiving a sentence of between 18 months and two years, the other receiving a sentence between four years and four years six months.
176 These statistics involve a small number of cases, from which it is difficult to derive any clear pattern. Further, it is necessary to take into account the changes to the law effected by the Crimes (Public Justice) Amendment Act 1990 (NSW), introducing the offences for which the applicant was convicted. Although those amendments long pre-date the statistics, earlier cases suggest that some courts have not given adequate attention to the change in the law. Sections 319 and 327(1) of the Crimes Act, as introduced in 1990, rendered a person liable respectively to 14 years imprisonment for perverting the course of justice and 10 years imprisonment for perjury in or in connection with any judicial proceeding. This effectively doubled the maximum sentences previously available for the equivalent offences. The increased severity was deliberate: as the then Attorney-General (Mr Dowd) said in introducing the Bill in the second reading:
"Offences that damage the administration of justice strike a the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end it must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. No only do offences concerning the administration of justice affect individuals, but the community as a whole has an interest in ensuring that justice is properly done."
177 In R v Taouk (1992) 65 A Crim R 387, this Court (Badgery-Parker J, Clarke JA and Aberdee J agreeing) reviewed a number of cases, the names of some of which remain familiar, where sentences were imposed for attempts to pervert the course of justice, either under the Crimes Act (Cth), s 43 of which imposed a maximum sentence of two years, or under the Crimes Act (NSW), prior to the 1990 amendments. In R v Farquhar, (unrep, 29 May 1985), this Court imposed a sentence of imprisonment for four years, with a non-parole period of 18 months: see Taouk at p 407. In R v Murphy (unrep, 1985) a sentence of 18 months, with a minimum term of 10 months was imposed at trial under the Crimes Act (Cth): see on appeal, R v Murphy (1985) 4 NSWLR 42 at 46C. In R v Jackson (unrep, 1987) a Government Minister was sentenced to imprisonment for 10 years with a non-parole period of five years, but, with remissions, was released from custody after a period of three years, two months. In Queen v Rouse (unrep, 19/10/1990, TasCCA), an attempt to bribe a member of parliament resulted in a sentence of three years imprisonment.
178 A perusal of this material confirms the difficulty of setting a range with respect to the present offences. Accordingly, it is inappropriate to comment on any particular sentence passed since the amendments in 1990 and to which those amendments applied. As noted above, there may be some doubt as to whether the significance of the amendments has been fully appreciated by the courts in recent years. However, given the maximum penalties of 10 years and 14 years respectively, applicable to the present offences, it is not possible to say that the terms of imprisonment imposed on the applicant were beyond a reasonable range. It seems likely that the sentencing judge had considerably higher sentences in mind having reference only to the objective circumstances of the offences, before taking into account the prior good character of the applicant, and other subjective circumstances to which his Honour gave careful attention, and the discounts for pleading guilty.
(10) Conclusions
(a) error identified - mandatory custodial period
179 As noted above, the real significance of the age, physical conditions and psychological problems faced by the applicant arise in relation to the period to be served in custody. They bear little relationship to any overall sentence, except to the extent that there was a real possibility of a further period being served in custody. The importance of imposing a balance of term, during which the applicant would expect to be at liberty, subject to supervision, is to emphasise the seriousness of the offence for the purpose of general deterrence and denunciation. It seems most unlikely that the applicant will ever reoffend. To that extent, a lesser custodial sentence would have been sufficient for the purposes of specific deterrence.
180 In other circumstances, the principle of totality requires that, in imposing multiple sentences for serious offences, a sentencing court should be astute to avoid imposing a "crushing" burden on the offender. That requires consideration of the overall effect of the totality of the sentences and particularly the possibility of rehabilitation. In accordance with that reasoning, there comes a point where the need for general deterrence and denunciation must play a secondary role to considerations personal to the offender.
181 This Court has remarked, on more than one occasion, that a description of sentences as "crushing" does not articulate some applicable test: see Ta'ala v R [2008] NSWCCA 132 at [42] (Grove J, Campbell JA and Johnson J agreeing); Barton v Regina [2009] NSWCCA 164 at [26] (Giles JA, Howie and Latham JJ agreeing). Nevertheless, that language is recognised as constituting an emphatic statement of the totality principle succinctly stated in Thomas, Principles of Sentencing (2nd ed, 1979) p 56:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'."
182 This statement of the principle was affirmed in Mill v The Queen [1988] HCA 70; 166 CLR 59. In Postiglione v The Queen [1997] HCA 26; 189 CLR 295, Dawson and Gaudron JJ described the totality principle as serving "to ensure that an offender is not subjected to 'a crushing sentence' not in keeping with his record and prospects": at 304. McHugh J in Postiglione (at 308) adopted similar language from a judgment of King CJ in R v Rossi (unrep, SACCA, 20 April 1988) cited by O'Loughlin J in the Full Court of the Federal Court, in Kelly v The Queen (1992) 33 FCR 536 at 541 to the following effect:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."
183 Kirby J in Postiglione noted (at 340) that similar language had been adopted in the Supreme Court of Canada by Lamer CJ in R v M (CA) (1996) 105 CCC (3d) 327 at 349.
184 It may equally be said that the phrase "just and appropriate" does not articulate an applicable test, but it does state a relevant principle which the courts are obliged to apply: cf also Criminal Appeal Act, s 6(3). It is a reflection of the requirement that, for this Court to intervene, a sentence be characterized as manifestly excessive and thus "unreasonable or plainly unjust" in the sense articulated in House v The King [1936] HCA 40; 55 CLR 499 at 505.
185 It has also been recognised that the severity of a sentence increases as the sentence is lengthened, at a greater rate than the overall length of the sentence: Clinch v R (1994) 72 A Crim R 301 at 306 (Malcolm CJ); R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[17] and Cavanagh v R [2009] NSWCCA 174 at [16] (McClellan CJ at CL, Grove and Buddin JJ agreeing). Whether the last proposition is true in all cases, it is clearly applicable in the present case involving an elderly offender in deteriorating health.
186 The applicant's age, which could hardly lessen his moral culpability, is nevertheless a significant factor in considering the effect of imprisonment. Similarly, his psychological state, whether it be the result of the conviction, the imprisonment or the adverse publicity, will mean that a period of custody will impose a greater burden on him than it might on others. His expected physical deterioration is likely to have a similar effect.
187 The applicant's submissions with respect to the cumulative effect of his physical and psychological conditions being underestimated by the sentencing judge have some force. However, his Honour clearly took this effect into account and it is not possible to say that the guarded language used in relation to those conditions demonstrated a failure to give them adequate weight. However, such weight as they had was taken into account expressly in determining the overall sentence, but was not specifically addressed in relation to the minimum period of custody, to which they were directly relevant. That approach revealed an error in principle.
188 Weight should have been given to the effects of the psychological and physical conditions of the applicant, specifically in relation to the period of mandatory custody. Those conditions were conveniently and carefully summarised by Dr Greenberg in his evidence on the appeal in the following terms:
"[Mr Einfeld] is aged 71 years old and has significant physical ailments. He has had prostate cancer and consequently suffers from urinary problems such as hesitancy of urine, frequency of urine and some burning while voiding urine. He also reports that he has sustained frequency of his bowel habits and requires special soap because of his inflamed rectal area. He has numerous arthritic difficulties with his back, shoulder, neck, arms and legs. This causes him some distress with painful joints. As a result of a fractured femur and two surgical procedures to correct the fracture, he has some shortening of his left leg, which resulted in him having an orthopaedic shoe and a walking stick. He reports difficulty sleeping due to his arthritic pain and unsuitable mattress. He has a chronic cough, which although it has been extensively investigated, persists. Mr Einfeld has peripheral neuropathy of his feet, which results in a feeling [of] pins and needles and cramping of his feet. He reports that while in custody he has had problems with dizziness and has been seen by the General Practitioner provided by Justice Health. Mr Einfeld suffers from depression and anxiety. This depression is clearly related in part, to his current environment, as well as his aging and physical status."
189 There is no doubt that these factors have resulted in some diminution of the overall non-parole period being served by the applicant. However, it was, in my view, erroneous to limit that consideration to the total sentence period (to which those factors had quite limited - and in some respects no - relevance) and eschew their application to the fixing of an appropriate aggregate non-parole period. The result is that, the non-parole period of 24 months constitutes a disproportionately high period of mandatory imprisonment for an elderly man in the applicant's state of health. A particular reduction of the total sentence period will have a proportionately lesser effect on the non-parole period. In re-sentencing the applicant, the fact that some reduction of the period of mandatory custody has already been achieved must be borne in mind.