Hunt v R

Court of Criminal Appeal (NSW)|2019-05-01|Before: Hoeben CJ, Hulme J, Davies J

Solicitors: Younes + Espiner Lawyers - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2014/0607732014/123379 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 December 2017 Before: Colefax SC DCJ File Number(s): 2014/060773 2014/123379

Offences and sentence The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by his Honour Judge Colefax SC in the District Court at Parramatta on 11 December 2017.

The offences for which the applicant was sentenced were: Count 1 - Perjury with intent to procure acquittal, contrary to s 328 of the Crimes Act 1900 (NSW) (Crimes Act) which carries a maximum penalty of imprisonment for 14 years. Count 5 - Perjury contrary to s 327(1) of the Crimes Act, which carries a maximum penalty of imprisonment for 10 years. Count 6 - Threaten witness to withhold evidence contrary to s 322(a) of the Crimes Act, which carries a maximum penalty of imprisonment for 10 years.

Ground 1 - His Honour erred in assessing the objective seriousness of Count 1

Ground 2 - The aggregate sentence imposed is manifestly excessive

FACTUAL BACKGROUND

The first offence for which the applicant was sentenced was perjury with intent to procure the acquittal of a person charged with a serious indictable offence. In this case the charged person was the applicant and the serious indictable offences were assault police in the execution of duty occasioning actual bodily harm and intimidation.
There were no expressly agreed facts upon which the applicant was sentenced. No submissions were made by either the Crown or counsel for the applicant as to the facts. Accordingly, his Honour accepted that the applicant's pleas of guilty necessarily involved him accepting the Crown case against him in relation to the counts to which he pleaded guilty.
In July 2007, the applicant was dissatisfied with the manner in which members of the New South Wales Police Force (stationed at Batemans Bay and Moruya) dealt with an assault and injuries which he alleged that he received at the hands of a Mr Keith Brodie in Wyndham in 2006. There was a great deal of hostility between the applicant and those police officers.
On 7 July 2007, the applicant arrived at the residential premises of Senior Constable Ochs. Senior Constable Ochs was not directly involved in the matter concerning Mr Brodie. Senior Constable Ochs and his wife lived on a remote rural property on Percy Davis Drive outside Moruya. At that time, the applicant was living at another property in that road. There was no issue that at that date the applicant knew where Senior Constable Ochs lived.
The applicant travelled to Senior Constable Ochs' property from the direction of the township of Tomakin, and not from the direction of the property where he was living at the time, which was in the opposite direction.
When he arrived at the property, the applicant briefly spoke to Mrs Ochs. He demanded to speak to her husband. When Senior Constable Ochs appeared, the applicant told him that he wanted to make a complaint about the police at Moruya. Senior Constable Ochs responded that it was not the time or place to make such a complaint and told him to leave on a number of occasions. The applicant refused to leave. He said to Senior Constable Ochs "It's your home. I know where you live. I'm going to get you. You bastard." Senior Constable Ochs feeling threatened, told his wife to call the police and attempted to arrest the applicant as he was getting back onto his motorcycle. A violent struggle took place in which the applicant got the upper hand. Mrs Ochs obtained a shotgun from the house and used it twice to hit the applicant over the head as he stood over her husband who was on the ground.
Senior Constable Ochs was subsequently taken to hospital and the applicant was charged with the serious indictable offences referred to at [6] above.
In July 2008, the applicant faced trial at the Bega District Court on those charges. Senior Constable Ochs gave evidence that the applicant turned up at his home wishing to complain about police and that the incident escalated from there. The applicant gave evidence and he was the only defence witness. He said that he was minding his nephew's dog which had slipped the chain when housed at his home in Percy Davis Drive. The applicant claimed that he attended three houses in that road while looking for the dog before attending the home of Senior Constable Ochs. The applicant was found not guilty by the jury on both charges.
The applicant's explanation in that trial for his otherwise suspicious presence at the home of Senior Constable Ochs was a lie and was the basis for Count 1.
Following his acquittal, the applicant commenced civil proceedings against the State of New South Wales. Those proceedings were intimately connected with the criminal charges and the events of 7 July 2007. The trial of the civil proceedings took place in the District Court at Sydney in October 2012. In those proceedings, the applicant gave evidence generally consistent with what he had said in the criminal trial and in particular that he went to the home of Senior Constable Ochs on 7 July 2007 looking for his nephew's dog. The applicant's evidence in that civil trial was a lie.
At the hearing of the civil proceedings, Mr Keith Davis and Mr Geoffrey Schell gave evidence in the applicant's case. Neither had given evidence at the earlier Bega criminal trial. Both were approached by the applicant in early 2012, five years after the incident. Both gave statements to the applicant's solicitor and both gave evidence in the hearing that they had been approached separately by the applicant one afternoon in 2007, inquiring about his lost dog. They both said that they had been residing in Percy Davis Drive at that time. They said that they did not know each other, nor the applicant, and resided in different premises. There was no issue that this evidence was false.
The primary judge in the civil proceedings delivered judgment on 23 November 2012. Her Honour entered a verdict and judgment for the applicant in the sum of approximately $300,000 plus costs (the Court of Appeal set aside that judgment on 13 March 2014 and ordered a re-trial: State of New South Wales v Hunt [2014] NSWCA 47). These matters formed the basis for Count 5.
After the civil proceedings, police received information that the applicant's nephew had not given his dog to the applicant to mind in 2007 and that the applicant was offering to pay people to give false evidence in his favour. On 20 December 2012, police executed a search warrant on the home of Mr Schell for unrelated matters. Police located a diary which Mr Schell stated was his. In the diary there were a number of entries which related to arrangements between the applicant and Mr Schell for the payment by the applicant to Mr Schell for the giving of false evidence in the civil proceedings.
In June 2013, Operation Dignam was commenced to investigate these matters. Police conducted a canvass of Percy Davis Drive and spoke to current and former residents who were residing in the area on 7 July 2007. Evidence obtained in that operation clearly showed that the applicant had a much greater familiarity with Mr Schell and Mr Davis than he represented in the civil proceedings.
On 25 February 2014, police executed a search warrant at the applicant's home which he shared with his mother. During the search police located a hand-held recorder. There was a recording in that device of a conversation between the applicant and one of his sisters, Mrs Rhonda Riches. Rhonda Riches is the mother of Aaron Riches, who is the owner of the dog which the applicant untruthfully asserted in the two hearings he had been minding and for which he was searching on 7 July 2007.
Between 26 February and 24 April 2014, the applicant was arrested and charged with the matters for which he stood trial before the sentencing judge. Following his arrest, the applicant was for a time bail refused. In late April 2014, while he was in gaol at Nowra (bail refused) he was visited by Rhonda.
At the time of that visit there was considerable friction between the applicant, his nephew Aaron and his sister Rhonda. This was because initially Aaron Riches made statements supportive of the applicant's untrue version of events of 7 July 2007. However, within a short time Aaron, through the formality and expense of a solicitor's retainer, withdrew those statements of support. The applicant was putting considerable pressure on his nephew. Rhonda supported her son and was in conflict with the applicant. When Rhonda was visiting the applicant in gaol in late April 2014, she told him that she intended to see a solicitor as a result of being contacted by police. The applicant told her to stay away from solicitors.
A few days after that visit, Rhonda received a message from the applicant. The message was that she should stay away from solicitors otherwise some Rebel bikies would be waiting for her. Rhonda ignored that threat. It is that threat which is the basis for Count 6.

Proceedings on sentence

His Honour made the following observations as to the objective seriousness of the offending: "The objective seriousness of the first and second offences (being Counts 1 and 5) are [sic] very considerable. They constitute a deliberate and prolonged attempt to pervert the administration of justice in this State. They were no passing spur of the moment decisions. They were persisted in over a long period of time. They involved the manipulation of lawyers and of grossly improper pressure being placed on witnesses. They involved deliberate and repeated lies being told on oath. The first offence [Count 1] was a very significant attack on the administration of justice and was done for the purpose of avoiding a likely period of significant imprisonment if convicted. The second offence involved also a very significant attack on the administration of justice and was done for the specific purpose of obtaining very significant damages. It is difficult to think of more serious attacks on the administration of justice persisted in over a long period of time. Each of those offences was deliberate, persistent and involved other participants. They each amounted to a substantial attack on the integrity of the judicial system. In my view, each is well above the midrange of objective seriousness and well into the upper end of the range. Insofar as the third offence (being Count 6) is concerned, and only because it was not believed by Mrs Riches, it is towards (but is certainly not at) the bottom of the range of objective seriousness." (Sentence judgment 10.2-11.1)
In terms of the applicant's subjective case, the sentencing judge found or referred to the following: 1. The applicant was 54 years of age at the time of sentencing. 2. The applicant was sexually abused as a young person. As a consequence, the applicant had Post Traumatic Stress Disorder (PTSD) which had not been formally treated. The applicant's long term use of cannabis and alcohol (from when he was 15 years of age) is, at least in part, self-medication in connection with his PTSD; 3. The applicant left school at the age of 15 and sometimes lived rough. He worked as a timber cutter then, following the failure of a business venture, as the full-time carer for his elderly mother; 4. The applicant has long term psychiatric illnesses: depression, drug dependency disorders and a personality disorder. The applicant had made efforts to address his drug and alcohol issues but had not completely resolved them; 5. While there was evidence of these "psychiatric disorders and his physical disorder" (Sentence judgment 12.8), there was no causal connection between them and the offending conduct; 6. Despite there being evidence of the applicant being of average to low average intelligence, he was still able to put in place a sophisticated scheme in relation to the criminal and civil proceedings. The offending conduct therefore "required considerable planning and sophistication of thinking" (Sentence judgment 13.4); 7. The applicant had a history of violence, some associated with alcohol. He had also spent time in custody for an offence of indecency against a young person in 2000. There were other periods of imprisonment; 8. The pleas of guilty were entered very late, well after any utilitarian value could be attributed to them, and his Honour did not consider that they merited any discount; 9. An expression of remorse made by the applicant (by way of a letter) was given little weight (Sentence judgment 14.1); and 10. The applicant's prospects for rehabilitation were "at best guarded" (Sentence judgment 14.4).
The sentencing judge made the following comments in relation to the structure of the sentences: "I intend to impose an aggregate sentence and, therefore, it is necessary for me to state the indicative sentences underpinning that sentence. For the first offence, the indicative sentence is ten years in prison. For the second offence, the indicative sentence is seven years in prison. For the third offence, the indicative sentence is two years in prison. I would not have ordered those sentences to be concurrent. There would have been partial accumulation between the first offence and the second offence. The sentence for the third offence would have been totally concurrent with the first. (Sentence judgment 14.5) … The question has arisen as to whether or not there should be a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. In this context, Mr Hunt is a mature man who has experienced imprisonment before. I am not satisfied that his prospects of rehabilitation would be enhanced by a longer period on parole. It is true that he has some physical as well as mental health issues but I am not satisfied that they cannot be adequately addressed in a custodial setting. I decline to make a finding of special circumstances." (Sentence judgment 15.3)
In his written submissions, the applicant identified material which was placed before his Honour in the sentence proceedings.
This included a JusticeHealth report of Dr Natasha Hyde, dated 3 November 2017. The report noted that the applicant suffered from the following physical problems:

Peripheral Vascular Disease, necessitating multiple surgical procedures and repeated admissions to hospital. The report noted "his condition can deteriorate at any point in time";
right total hip replacement in 2009. The applicant was fitted with a faulty prosthesis which resulted in pain and difficulty walking;
Gastro Oesophageal Reflux Disease (GORD) requiring medication; and
Chronic Obstructive Pulmonary Disease (COPD) leading to intermittent infectious exacerbation requiring antibiotic treatment.

Dr Hyde's report concluded with the observation that "Mr Hunt has a number of chronic medical conditions, all manageable in custody. He has booked appointments with Vascular and Orthopaedic teams [at] Prince of Wales hospital in coming months" (Dr Hyde report 3.1).
There were before the court reports from a psychologist, Tim Watson-Munro, and from a psychiatrist, Dr Anna Farrer.
The report of Mr Watson-Munro noted that the applicant suffered from a Depressive Disorder, an Anxiety Disorder and features of PTSD arising from life events including being sexually abused as a young person. The report noted that the applicant had been assessed as falling within the "low average range in terms of his intellect" (a finding his Honour did not accept).
Dr Farrer found symptoms of PTSD, a Depressive Disorder, an Alcohol Use Disorder and Cannabis Use Disorder with further evaluation required for an Opiate Use Disorder and Amphetamine Use Disorder.
Dr Farrer concluded at page 8 of her report: "[The applicant] did not have evidence of a significant Cognitive Impairment or Intellectual Disability at assessment or at bedside cognitive testing. He has some minor impairments in memory and orientation which may reflect an early dementia process with multiple risk factors for dementia ... [The applicant] appeared of average to low average intelligence at clinical interview. IQ testing with a validated clinical instrument (such as the Weschler Intelligence Scale) by a clinical psychologist would confirm his IQ ... Neuro-psychological testing by a psychologist would further determine any cognitive deficits. Mr Hunt had multiple medical issues including Peripheral Vascular Disease, Femoral-Popliteal Bypass Surgery, Chronic Pain of right hip and right leg, Right Hip Replacement, recurrent cellulitis, Chronic Pulmonary Disease and Gastro-Oesophageal Reflux Disease. Mr Hunt's medical issues may also be affecting his mental state in terms of worry about his health conditions (particularly possible loss of his right leg), impaired sleep due to pain, increased fatigue, and depressed mood due to worsening medical problems."

Ground 1 - His Honour erred in assessing the objective seriousness of Count 1

As can be seen from [24] hereof, his Honour assessed the objective seriousness of Counts 1 and 5 in the same way and referred specifically to "the manipulation of lawyers and grossly improper pressure being placed on witnesses … Each of those offences … involved other participants". The applicant submitted that in doing so his Honour had erroneously taken into account factual matters which applied only to Count 5 when assessing the objective seriousness of Count 1. He submitted that this had led to error in the assessment of the objective seriousness of Count 1.
The applicant submitted that while no issue was taken with his Honour's assessment of the objective seriousness of Counts 5 and 6, his Honour's assessment that the objective seriousness of Count 1 was "well above the midrange of objective seriousness and well into the upper end of the range" was not open. This was because:

there were no other participants in the perjury at that stage;
there was no course of conduct other than the applicant's own false evidence as to his purpose in attending the Ochs' property;
there was little sophistication in the false account at that stage;
his only motivation was to procure his own acquittal; and
the seriousness of the "serious indictable offences" was not particularly high being assault police in the execution of duty occasioning actual bodily harm and intimidation.

The applicant submitted that the erroneous assessment of the objective seriousness of Count 1 led to an excessive sentence being indicated which in turn led to an excessive aggregate sentence.
The respondent submitted that in the sentence proceedings the only submission by the applicant in relation to the objective seriousness of Count 1 related to the content of the untruthful evidence and his intention when he attended the property of Senior Constable Ochs. No submission was made to the effect that the objective seriousness of Count 1 was less than that of Count 5 because it lacked the additional factors which were present in Count 5 and which caused the seriousness of the offending in Count 5 to be correctly characterised as "above the midrange of objective seriousness and well into the upper end of the range".
The respondent submitted that Ground 1 raised new material which had not been relied upon in the sentence proceedings and that in accordance with Zreika v R [2012] NSWCCA 44 this appeal was not the occasion to reformulate the case made below and that arguments should not be raised for the first time on appeal.

Consideration

The respondent's submission misunderstands the point relied upon by the applicant in Ground of Appeal 1. The applicant was not raising for the first time a new point, nor was the applicant reformulating his case. The submission by the applicant was that his Honour misstated in a significant way the facts giving rise to Count 1 and that as a result, made an erroneous assessment of the objective seriousness of the offending in Count 1.
In making that submission, the applicant was identifying House v The King [1936] HCA 40; 55 CLR 499 error in that the sentencing judge erred in the exercise of the sentencing discretion. The error was that his Honour allowed extraneous or irrelevant matters to guide him in respect of Count 1 and made a mistake as to the facts giving rise to Count 1.
The applicant's submission as to House v The King error should be accepted. Contrary to his Honour's findings, when assessing the objective seriousness of Count 1, there were no other participants to the perjury at that stage, there was no course of conduct, other than the applicant's own false evidence, there was little sophistication except an intention on the part of the applicant to procure his own acquittal.
It follows that Ground of Appeal 1 has been made out.
Because Ground of Appeal 1 has been made out, it will be necessary to resentence the applicant. In those circumstances, it is not necessary to consider Ground of Appeal 2. Questions raised by the applicant's subjective case, specifically his physical and psychiatric disorders, will need to be taken into account in the resentencing process. To the extent that instances of similar offending are relevant, they also will need to be taken into account on resentence.
Further material was placed before the Court to be considered on resentence. This was an affidavit of the applicant's solicitor, Ms Espiner, sworn 29 April 2019. The affidavit provided up to date information as to the applicant's physical state.
The affidavit made it clear that the applicant was continuing to suffer Peripheral Vascular Disease problems in his right leg. He had been admitted in January 2019 to the Prince of Wales Hospital with an "acute ischaemic right lower limb secondary to femoral-popliteal bypass graft occlusion" which required vascular surgery. The applicant remained in hospital until 4 February 2019. In addition, the applicant was suffering from intermittent cellulitis of his right lower leg (cellulitis is an infection of the skin caused by bacteria, usually Staph. People who have poor circulation are more at risk of cellulitis).
The applicant continued to experience problems with his right lower leg throughout 2017 and 2018 which required periods of hospitalisation. There was no further evidence as to his mental condition. Accordingly, although his Honour found that there was no causal relationship between his mental problems and the offending, conditions such as PTSD would make his time in prison more difficult.
The Court was referred to a number of decisions involving similar offending. In doing so, the applicant accepted that sentences in other cases of perjury and related administration of justice offences, did not lend themselves to easy comparison in that such offences were very fact specific. The applicant did, however, submit that the sentence imposed on the applicant stood out as being significantly greater than the sentences imposed in those other cases.
As indicated, the applicant did not challenge the indicative sentences for Counts 5 and 6. It is, however, necessary to re-exercise the sentencing discretion in assessing the objective seriousness of the offending in Count 1. While false evidence in criminal proceedings strikes at the basis of the administration of justice, regard needs to be had of the seriousness of the offence to which the false evidence is directed. In this case, although serious indictable offences were involved, they were very much at the lower level of seriousness, e.g. the applicant was not seeking to avoid a conviction for murder or analogous violent offending. That having been said, the damage caused to the judicial system by perjured evidence remains substantial.
Although the offending in Count 1 lacked the sophistication associated with the offending in Count 5, it still involved a degree of premeditation and a clear intention to deceive the Court. Accordingly, I would assess the objective seriousness of Count 1 at midrange for offending of this kind. I indicate a sentence for that offence of 5 years.
In formulating the aggregate sentence, I differ from the sentencing judge in that I would partially accumulate the sentence for Count 6 on the sentences for Counts 1 and 5. This is because the sentences for Counts 1 and 5 do not comprehend and reflect the criminality in Count 6 (Cahyardi v Regina [2007] NSWCCA 1; 168 A Crim R 41 at [27]). It is clear from the circumstances surrounding Count 6 that at that time the applicant was still intending to deceive the court and place before it, falsely sworn evidence.
In resentencing regard needs to be had to the applicant's subjective case, in particular his mental and physical difficulties. His Honour's finding that these conditions did not contribute to the offending does not end the matter. These conditions, particularly the problems with his right lower leg, would undoubtedly make his time in prison more difficult and allowance for this factor needs to be made when resentencing. That allowance, however, needs to also take into account that JusticeHealth records make it clear that the applicant is receiving appropriate treatment while in custody for his physical ailments, in particular, the vascular problems affecting his right lower leg. In that regard, I apply the statement of principle by Beech-Jones J in R v Obeid (No 12) [2016] NSWSC 1815 at [117]-[120] where his Honour said: "118 … Although the health of an offender is relevant to the type and length of any sanction imposed, generally it will only be a mitigating factor "where there is evidence to show that there is a serious risk that imprisonment will be a greater burden on the offender, by reason of ill-health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health" (R v Badanjak [2004] NSWCCA 395 at [9] per Wood CJ at CL with McClellan AJA and Smart AJ agreeing). …" I am satisfied that the applicant's physical problems satisfy that test.
The applicant's submissions as to similar cases focused upon the four cases relied upon before the sentencing judge (three of which involved police officers giving perjured evidence) and three additional cases. What the cases reveal is that the sample of perjury cases is very small and that the variation in their factual backgrounds is substantial. Each case involved very particular factors which were taken account of when sentencing. Because these cases are so fact specific, they provide little assistance in this matter.
As Adamson J observed in Vandeventer v R [2013] NSWCCA 33 at [45]: "45 One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive."
It follows that the cases relied upon by the applicant are not demonstrative of any error on the part of the sentencing judge in the present case. They do no more than indicate historically what sentences have been imposed in relation to perjury offences in the past.
Taking all those matters into account, I am satisfied that the sentence imposed by his Honour is excessive and should be quashed. The sentence which I would impose is imprisonment for 8 years with a non-parole period of 6 years.
Accordingly, the orders which I propose are: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed by his Honour Judge Colefax SC on 11 December 2017 is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for 8 years with a non-parole period of 6 years, commencing 7 February 2017. The non-parole period is to expire on 6 February 2023 and the balance of term on 6 February 2025.
R A HULME J: I agree with Hoeben CJ at CL.
DAVIES J: I agree with Hoeben CJ at CL.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2019

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