The application for leave to appeal
48The notice of grounds of appeal, which was filed on 22 October 2010, raised only one ground of appeal. That was that the sentence:
"... is manifestly excessive and too severe in all the circumstances."
In written submissions of the same date, however, it was sought to expand the ground of appeal to raise the following (which I will treat as separate grounds):
"I His Honour gave insufficient weight as to the effect of the Applicant's pleas [of guilty] given that remorse and contrition were found to be genuine ...;
II His Honour gave insufficient weight, or no weight to the issue of a substantial delay (of about three years and eleven months);
III His Honour gave insufficient weight, or no weight, to the motives of the Applicant in committing the [perverting the course of justice] offences ...;
IV His Honour expressly found in favour of rehabilitation and special circumstances ... However, the structure of the sentence as to its imposition and effect made no adjustment to the NSW Statutory ratio with the non-parole period comprising seventy-five percent and the parole period comprising twenty-five percent;
[Ground IV is intended, as I understand it, to complain that, despite the finding of special circumstances, the aggregate sentence restored the statutory formula and did not reduce the proportion of the overall non-parole period to the overall head sentence. No submissions were directed to this ground.]
V His Honour was in error in concluding that the [perverting the course of justice] offences were well above the mid-range;
VI That the sentence was manifestly excessive in all of the circumstances."
49The submissions do not identify whether this last contention is made in relation to each of the individual sentences, or to the aggregate of all sentences imposed, taking into account the extent of accumulation. It does appear to be accepted that Ground VI can succeed only if fresh evidence, upon which the applicant seeks to rely, is admitted. I will deal with that below.
50Before coming to the fresh evidence issues, I will deal with the grounds numbered I-V.
Ground I: the weight given to the pleas of guilty
51The complaint that insufficient weight was given to the applicant's pleas of guilty cannot be sustained. He was allowed the maximum reduction envisaged in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 in respect of the utilitarian value of the pleas. Sorby DCJ spent a good part of his analysis referring to the applicant's evidence of humiliation and disgrace, and accepted that the applicant, by the time of sentencing, recognised the significance of his offences, and was remorseful. Those matters were plainly properly taken into account. There was no call to specify any additional reduction attributable to the pleas of guilty, and to have done so would itself have constituted error.
Ground II: delay
52The two offences of perverting the course of justice were committed over a period between 19 February 2006 and 25 February 2006. The offences of making false statements to an officer of ICAC were committed on 14 March 2006. The offences of giving false or misleading evidence at an ICAC hearing were committed on 20 March 2006. The applicant admitted the falsity of the information and evidence he had given on 12 April 2006. Court Attendance Notices were not issued until 24 June 2008. The applicant entered pleas of guilty on 4 August 2009, and was sentenced on 26 March 2010.
53This chronology certainly suggests some tardiness in the prosecution process, but not only in the prosecution process. There appears in the papers before this Court no explanation for the lengthy delay. Delay in sentencing can be a relevant consideration: R v Todd (1982) 2 NSWLR 517; Blundell v R [2008] NSWCCA 63; 70 NSWLR 660; Blundell v R [2008] NSWCCA 92; 184 A Crim R 120 , but it is necessary that the sentencing judge be in a position to appreciate the reasons for the delay. There was evidence from the applicant that, in June 2007, he had suffered a heart attack, and this, it may be inferred, may have been the explanation for some part of the delay, but there was no evidence to that effect.
54Counsel for the applicant provided, to the sentencing judge, lengthy and detailed written submissions. These included, in two different sections, references to the delay and its relevance to sentencing. The submissions were couched in somewhat flamboyant language. They attacked ICAC for the delay, but gave no indication of any evidentiary basis for the accusations they made. They were, in my view, hardly calculated to assist the judge in determining the relevance of the delay to the sentences selected.
55In this respect the sentencing submissions were unenlightening. Notwithstanding that, reference was made to authority supporting the proposition that delay was a relevant sentencing consideration, and I accept, in this case, that it was.
56The applicant was not a young, and not a very healthy, man. He was 58 years of age when he committed the offences: he was 62 when sentenced. That no attention was paid in the Remarks on Sentence to the delay, even when it had been expressly raised, in my opinion, signifies error in that an important sentencing consideration was overlooked.
57I would uphold this ground of the application. I will deal with its consequences below.
Ground III: the applicant's motives
58It was again reiterated that the motives of the applicant did not suggest self-interest or pecuniary benefit. Such evidence of motive as there was came from the applicant's own testimony. He said that he did what he did as "an act of compassion" that "they" (the mothers of Messrs Tourni and Khouzame) had begged him to sign the false time sheets in order to allow the offenders to maintain their employment and therefore their income. He had already given a similar account to the author of the Pre-Sentence Report.
59Sorby DCJ did not overlook that the applicant stood personally to gain nothing from his offences. (That may be true of the offences of perverting the course of justice; but as was acknowledged, it is not so with respect to the ICAC Act offences, in respect of which he stood to gain much by way of self protection.)
60In my opinion, it is a clear inference on the evidence that the applicant acted as he did with little or no regard for the law, or the importance of integrity in the operation of the Community Service Orders system. He put the interests of his parishioners before both the interests of the community and his responsibility to the administration of justice. The absence of any motive of self-interest is quite neutral. There is no substance in this ground.
Ground IV: the structure of the sentences
61As I have mentioned above, no submissions, written or oral, were directed to this ground. That seems to me to have been an oversight.
62It is correct that the sentencing judge found, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying a reduction in the proportion the non-parole period carries to the head sentence. In respect of the longer of the pervert the course of justice offences (on which he imposed a sentence of 2 years), he reduced what would, on s 44(2) proportions have been a non-parole period of 18 months, to 14 months. In respect of the other two sentences, because he imposed fixed terms, s 44(2) did not apply.
63However, after the accumulation, the aggregate sentence (3 years and 4 months with a non-parole period of 2 years and 6 months) conforms precisely with s 44(2).
64Whether this denotes error or not depends upon the purpose the sentencing judge sought to achieve by the finding: see Baudromo [2007] NSWCCA 43 at [32]. The reasons his Honour gave were the unlikelihood of re-offending and the "self-rehabilitation" achieved by the applicant. This, in my view, makes it clear that his Honour intended to afford the applicant the benefit of the finding of special circumstances in a real and practical sense. That is not achieved if the application of the variation is made only internally, to an individual sentence that is subsumed in the overall, or aggregate sentence.
65On behalf of the Crown it was accepted that these circumstances justify a grant of leave to appeal; however, the Crown put, first, that, notwithstanding the finding, no other sentence is warranted in law (see Criminal Appeal Act 1912, s 6(3); R v Simpson [2001] NSWCCA 534; 53 NSWLR 704), and, alternatively, that any intervention warranted is "particularly limited".
66In my opinion this ground of appeal ought to be upheld.
Ground V: objective gravity
67The finding to which objection is here taken concerns the two offences of acting to pervert the course of justice. His Honour found that those offences were "well above the mid-range of objective seriousness for such offences".
68In respect of the false and misleading evidence counts, he found that they fell within the mid-range of objective seriousness. He does not appear to have made a finding in respect of the false and misleading information offences (they having been dealt with as Form 1 offences), but it may be inferred that, had he done so, it would have been commensurate with the false and misleading evidence charges.
69The applicant takes issue with the finding that the pervert the course of justice offences were "well above" the mid-range of offences of their type.
70The express finding by the sentencing judge that the pervert the course of justice offences were "well above the mid-range of objective seriousness for such offences" reflects a practice that has developed and has been sponsored by, the introduction, with effect from February 2003, of Pt 4 Div 1A of the Sentencing Procedure Act, and is reflective of the language in that legislation. Section 54A (which opens Div 1A) prescribes, in respect of certain identified offences, standard non-parole periods. The purpose of a standard non-parole period is explained in sub-s (2) as follows:
"(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division."
71Assessment of the objective gravity of any offence has traditionally been an essential element of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349. It should not be doubted that any sentencing decision calls for attention to be paid to the objective gravity of the offence: Markarian v R [2005] HCA 25; 228 CLR 357.
72While the assessment of objective gravity is an essential part of the sentencing process, it would be erroneous to commence with that assessment, select a sentence, and step down, bit by bit, to take account of mitigating circumstances, personal to the offender: Markarian at, for example, [39] and [50]. The process to be undertaken is an "instinctive synthesis" of which objective gravity is an essential, but not the only, element. Built into this process are notions of relative gravity: Way at [77].
73Offences to which Pt 4 Div 1A, however, call for an additional step to be taken: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [72]. There, this Court said:
"72 It is evident that the sentencing exercise which is now required for Table offences requires a critical focus, not only upon the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified." (bold added)
It is the second part of this process which was introduced by Pt 4 Div 1A, and which is new, but which is not apposite to offences to which Pt 4 Div 1A does not apply.
74Thus, while an assessment of objective gravity is, in all cases, a necessary aspect of the sentencing determination, it is only in respect of offences that, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, carry a standard non-parole period that an evaluation of where, on a putative or notional scale of objective gravity an offence falls, is necessary. Indeed, it has been held that to make such an assessment with respect to an offence to which that legislation does not apply is to fall into error: R v Georgopolous [2010] NSWCCA 246, per Howie AJ.
75In Georgopolous , which concerned an offence to which Pt 4 Div 1A did not apply, Howie AJ said:
"30 Because the offence did not carry a standard non-parole period, it was unnecessary for his Honour to embark upon a detailed finding as to where the offence lay in relation to a mid range of objective seriousness for an offence of this type. It is likely to lead to confusion and misinterpretation when the offence does not carry a standard non-parole period.
...
32 Further, it seems to me that the course adopted by the (sic) Conlon DCJ leads to a 'two-step' approach to sentencing by dividing the 'instinctive synthesis' into a decision on the objective seriousness of the offence followed by a consideration of the subjective circumstances of the offender: cf Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [35] to [39]. In a case where a standard non-parole period applies the court is forced by the terms of the legislation to engage in a stepped approach to sentencing involving, as the first step, a consideration of the objective seriousness of the offence followed then by a consideration of the matters in s 21A [of the Sentencing Procedure Act]: see MLP v R [2006] NSWCCA 271; 164 A Crim R 93. But where that legislation does not apply, a court should avoid embarking upon an independent and detailed analysis of objective seriousness ." (bold added)
76Howie AJ's remarks, particularly the last (emphasised) sentence in [32] ought not to be read as discouraging sentencing judges from undertaking the traditional task of making an evaluation of objective gravity. What they ought to be taken as suggesting is that the introduction of Pt 4 Div 1A has created a statutory encroachment on the otherwise forbidden two-step process frowned upon in Markarian . By reason of s 54B(2), in cases to which that Part applies - and only in cases to which that Part applies - a two-step approach has been mandated, and is inevitable. In my opinion Howie AJ did not intend to say that, in non-standard non-parole period cases, a sentencing judge should avoid analysing objective gravity. So to suggest would run counter to accepted and traditional sentencing procedure.
77It is hypothesising a notional, or putative, mid-range offence, where the relevant legislative provisions do not call for such a hypothesis, that Howie AJ decreed is contrary to principle. If, contrary to my opinion, Howie AJ did intend to say that, in non-standard non-parole period cases, sentencing judges should avoid making an assessment of objective gravity, I would respectfully disagree.
78Although this was not the foundation of the argument put on behalf of the applicant, I have come to the view that the finding, using the language of Pt 4 Div 1A, was apt to denote an erroneous approach. That, however, is far from finding that the conclusion that followed was erroneous. In King v R [2011] NSWCCA 46, where a similar finding had been made at first instance, Hall J came to a contrary view; he did this after examination of the whole of the remarks on sentence. I do not perceive Hall J to have held that such a finding could not denote error; the result in King depended upon a close analysis of the approach taken at first instance.
79In support of the argument, various features sometimes associated with offences of perverting the course of justice were identified - violence, intimidation of witnesses, personal gain. I accept that, where they are present, these are all factors that affect objective gravity, and, of course, that all are absent from the present case.
80I am not prepared to find that the assessment was not open to the sentencing judge, or that it was wrong. There were two offences of perverting the course of justice committed virtually simultaneously; they were intended to, and did, have the effect of subverting the operation of a very important sentencing option. It is obvious that, if community participants cannot be trusted to exercise the functions and responsibilities (and privileges) conferred upon them with integrity the entire scheme will fail, to the obvious detriment of both the community and offenders who can be given the benefit of a non-custodial penalty.
81I accept that intention is a significant aspect of the offence, and that there is, in the materials, some suggestion that the applicant did not fully appreciate the ramifications of what he did.
82In this respect I anticipate some material with which I will deal when I come to the application to adduce fresh evidence. There are, there, suggestions that the applicant was inadequately trained, or inducted, into the scheme. At this stage, it is only necessary to say that the only evidence before the sentencing judge was that contained in the Pre-Sentence Report, that the applicant had, on two separate occasions, been "inducted" or accredited as part of the scheme. Moreover, he gave no evidence that he did not understand what he was doing.
83I would reject ground V.
Ground VI: manifestly excessive
84In support of this ground reference was made to a number of decided cases, and to statistics provided by the Judicial Commission of NSW (the limitations of the use of which are well known).
85Although it was not clearly stated in the written submissions, it appears, from the nature of the submissions, that this ground is solely, or at least primarily, directed at the pervert the course of justice offences. That may be because a sentence of 8 months for giving false and misleading evidence to an ICAC inquiry, could not, by any stretch of the imagination, be considered to be manifestly excessive.
86In respect of the pervert the course of justice offences, the applicant was sentenced, respectively, to imprisonment for a fixed term of 14 months and imprisonment for 2 years with a non-parole period of 10 months. When the accumulation of 10 months is taken into account, for the two offences the applicant was sentenced to a combined term of imprisonment of 2 years and 10 months, made up of a non-parole period of 2 years and a balance of term of 10 months; that was partially accumulated (by 6 months) on the 8 month sentence for the false and misleading evidence offence. This, it is to be remembered, is in respect of two (almost identical and almost concurrent) offences, and against a statutory maximum penalty of 14 years.
87The submissions made on behalf of the applicant referred globally to statistics maintained by the Judicial Commission, but these were not provided to the Court. It was put that;
"... in the higher courts fulltime prison was imposed in 47 per cent of cases. Of the 47 per cent of cases attracting fulltime prison, head sentences inclusive of consecutive and non-consecutive terms ranged from 6 months to 54 months [4 years and 6 months]. Non-parole periods ranged from 6 months to 30 months [2 years and 6 months] with the mean at around 12 months."
Since the Crown did not take issue with this short summary, it is appropriate that it be accepted as reflecting what the statistics disclosed.
88The sentences the subject of the statistics do not appear to reflect the serious view this Court has repeatedly and consistently expressed concerning the gravity of offences of this kind: see R v Taouk (1992) 65 A Crim R 387 at 415; Marinellis v R [2006] NSWCCA 307 at [10]-[11]; Taylor v R [2007] NSWCCA 99 at [39]-[40]. See also R v Einfeld [2009] NSWSC 119, per James J at [183] (upheld on appeal: Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 ).
89It is worth examining some of the individual cases. The most obvious with which to begin is Einfeld .
90The offender was a former judge of a superior court. He was charged with, and pleaded guilty to, two offences, one of perjury, and one of doing an act with intent to pervert the course of justice. The perjury charge arose out of evidence the offender had given in a Local Court hearing, where he faced a charge of driving at a speed exceeding the prescribed speed limit. He falsely denied that he had been the driver of the vehicle at the time it was observed (by a speed camera) exceeding the speed limit.
91The perverting the course of justice charge arose out of his subsequent elaborate and carefully constructed attempts to avoid being charged with perjury, after it was discovered that the evidence he had given was false.
92The offender was not quite 68 years of age at the time of the offences, retired from the judiciary, and in indifferent health. In sentencing him on the pervert the course of justice offence, James J took into account, inter alia :
- that the offence was "clearly premeditated";
- that the offence involved considerable planning;
- the motive for the offence (self protection);
- that, by reason of the offender's long career in the law, he clearly was in a position to appreciate the significance of his conduct.
93With respect to that offence, James J imposed a sentence of imprisonment for 2 years and 3 months, made up of a non-parole period of 1 year and 3 months, and a balance of term of 1 year (for completeness, I mention that this sentence was partially accumulated on the sentence imposed in respect of the perjury offence; the overall sentence was of 3 years, with a non-parole period of 2 years, and a balance of term of 1 year.)
94While the applicant is of an age comparable to that of that offender, the premeditation, planning, motive and that offender's career in the law and consequent appreciation of the significance of his criminality, all distinguish his case from that of the applicant, and operate to the applicant's advantage. On the other hand, it cannot be overlooked that the applicant committed two offences of this kind, as well as the other offences for which he was sentenced.
95In Marinellis , the offender, who was in custody on remand in respect of serious fraud charges, wrote two letters, one to his wife and one to his girlfriend, in each case urging the intended recipient to contact police officers involved in prosecuting the charges, and offer them bribes. The letters were intercepted by prison officers and did not reach the addressees. He was charged with, and pleaded guilty to, one offence of doing an act with intent to pervert the course of justice; the second offence was taken into account on a Form 1 pursuant to Pt 3 Div 3 of the Sentencing Procedure Act. The sentence imposed was of 3 years and 8 months, with a non-parole period of 2 years and 9 months and a balance of term of 11 months. That sentence was not disturbed on appeal.
96In Taylor , the offender also was in custody on remand, facing charges arising out of a stabbing. The offender made numerous calls to a potential Crown witness, urging her to give false evidence of her observations of the events the subject of the stabbing charge, which would inculpate another person. He made similar approaches to his mother. He pleaded guilty to two charges of doing an act to pervert the course of justice. On the first, he was sentenced to imprisonment for 3 years and 3 months, made up of a non-parole period of 2 years and 3 months, and a balance of term of 12 months; on the second, he was sentenced to a fixed term of imprisonment of 2 years, to be served wholly concurrently with the first.
97I would accept that the offences in Marinellis and Taylor were objectively more serious that those of the applicant. So also was the offence in Einfeld , made particularly so by the degree of planning and elaborate preparation, the degree of self interest sought to be protected, and the status of the offender. But in Marinellis and Taylor the greater objective gravity was reflected in both the head sentences and the non-parole periods imposed. And in Einfeld , the aggregate sentence (in respect of only two offences) was only slightly less than that imposed upon the applicant.
98This survey and analysis of comparable cases persuades me that the individual sentences imposed upon the applicant are not out of line with accepted sentencing practice. The various observations of this Court concerning the need to maintain the integrity of the administration of justice and therefore to deal severely with attempts to pervert it establish, in my opinion, that these sentences were not in themselves manifestly excessive.
99Nor, in the circumstances, could it possibly be said that the sentence of imprisonment for a fixed term of 8 months in respect of the false or misleading evidence at an ICAC hearing was manifestly excessive.
100There remains a question whether the degree of accumulation of the sentences resulted in an overall term that is manifestly excessive. I will return to this after I have considered the fresh evidence.