R v Buscema [2011] VSC 206

3 The Crown accepts that you so lied because you believed that you were providing Coombes with a false alibi for drug trafficking activities. In fact, although it is not suggested that you knew it, Coombes asked you to lie in order to provide him with a false alibi for the murder of Raechel Betts on 12 August 2009.

4 On 2 November 2009, after taking legal advice, you participated in a record of interview in which you stated, among other things, that:

• You were aware of the general circumstances of Raechel Betts' murder;

• You had met her half a dozen times at Coombes' place;

• You had met Coombes through your ex-girlfriend Kellie Kreitling, some two years before;

• When you made the two statements to police on 22 August 2009, you believed the statements were sought by police because you were one of the last people to see the deceased;

• When you saw the deceased on 11 August 2009 - the day she went missing - 'she was pulling into Coombes's driveway as I was pulling out';

• Although you did stay at Coombes' home on the night of 11 August 2009, Coombes was only there for part of the evening, until about 9.00 pm;

• Contrary to your statement of 22 August 2009, you had not gone with Coombes on 12 August 2009 to the premises in Dandenong to fix a security camera;

• You had lied to police about Coombes being at home on the night of 11 August 2009 and working with him on the evening of 12 August 2009 because, the day before you made the two statements, Coombes asked you to lie;

• When police inquired of you as to what you thought Coombes had done that needed an alibi, you responded by saying, 'not this' - you thought Coombes was covering for something to do with drugs;

• You said that you had continued with the alibi 'in fear of what could happen. I could be harmed or something', but that Coombes had not threatened you at any stage;

• Although Detective Smyth said to you on 29 October 2009 that he believed that your statements of 22 August 2009 were false, on 29 October 2009 you maintained that your statements of 22 August 2009 were true, and the reason you had not contacted police and

• changed your story at an earlier stage was because you considered you were safer maintaining the status quo.

5 On 2 November 2009, you were charged with the offence of attempting to pervert the course of justice. You offered to plead guilty to that offence on 22 April 2010 and, at the committal hearing on 23 February 2011, you entered a plea of guilty. As Mr Sonnet for the Crown frankly acknowledged, the only sticking point up to now has been whether you supplied Coombes with a false alibi knowing that he was suspected of murdering Rachael Betts or because you believed that he was involved in some sort of drug trafficking activity. The Crown now accepts that it was the latter.

6 Offences of attempting to pervert the course of justice are conceived of as striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition. The offence is broadly defined, however, and so may be committed in a wide range of circumstances, and the particular circumstances of each case inform the gravity of the offending. Circumstances which bear upon the assessment of the nature and gravity of particular offending, and so upon the sentence to be imposed, have been identified[1] as including the following:

a) The consequences which the offending was calculated to avoid;

b) The time for which the deception was maintained and whether it was actively repeated or persisted in or merely allowed to continue;

c) Whether the deception involved some other person, either as an accomplice or as a victim;

d) Whether there was any threat or violence involved;

e) Whether the offence was spontaneous or premeditated;

f) Whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that.

7 Judged by reference to those criteria, I consider that your offence was relatively serious, albeit falling well short of the most serious category of cases.

8 Your false statements were designed to prevent Coombes being detected and punished for what you believed to be drug trafficking activities - in itself serious offending - and as it turned out, they provided him with a false alibi for a most gruesome murder. The time for which the deception was carried on was substantial, albeit that, as events turned out, telephone records obtained by the police on 28 August 2009 and Eastlink records secured by them on 15 October 2009 demonstrated that the alibi you had given Coombes had to be false. You did nothing to correct the position, however, until you were confronted with the facts on 29 October 2009 and, even then, you persisted in the lies you had told until 2 November 2009. Your offending was premeditated, in that you agreed with Coombes the day before making the false statement to police on 22 August 2009 that you would lie in order to cover for him. Further, although your offending did not result in a deception of the court, and there is little evidence of the extent to which it may have hindered the police investigation of the murder, it was calculated to do real damage to the justice system by deceiving and so defeating the police in the exercise of their duty to detect an offender and bring him to justice.[2]

9 As to your moral culpability, although your offending may have been motivated by your friendship with Coombes and, as your counsel suggested, to some extent you may have been unduly influenced, I am not persuaded, even on the balance of probabilities, that your offending was motivated by fear. Apart from an assertion of concern in your record of interview, there is no evidence of fear and, as it appears to me, the assertion of concern is contradicted by your written statement of 2 November 2009. It is also apparent that you committed the offence well knowing it to be unlawful and with the intention of shielding someone whom you believed to be a drug trafficker from detection and prosecution. There is no evidence that you received any financial or other material reward for assisting Coombes. Nevertheless, I judge your moral culpability to be substantial.

10 I turn to your personal circumstances. You were born on 25 February 1984 and so, at the time of the offending, were 25 years of age. You were educated at Mill Park Secondary College until the end of Year 11, when you were 16 years of age, and thereafter you went on to complete a six month certificate course in shop fitting and joinery at the Northern Institute of TAFE. That led to an apprenticeship with Berella Kitchens, which you pursued for the first three years of the four year course, but you failed to qualify as a tradesman. You continued, however, to work for Berella as unqualified cabinet maker until 2009. Early in that year, you became disenchanted with cabinet making and began work with a friend, but the enterprise did not work out as you had hoped or expected and, later in that year, you began a succession of jobs with various labour hire companies, including shop fitting labouring work at an IGA store construction site in Seville, and you persisted with that until you returned to cabinet making in 2010. Since then, you have been continuously engaged as a self-employed sub-contract cabinet maker with EEP International, of which the principal client is Welcome Homes, and you have been and are consistently working 60 hours a week in that role.

11 You are one of a sibship of three, with sisters aged 23 and 29, and you have lived with your parents in their home for the last six years. They and your sisters were present in court during the plea in mitigation to support you, and I was told and

11 accept that they have supported you continuously since you were first charged in November 2009. It appears that you have a close, loving and supportive family.

12 According to your first statement of 22 August 2009, you met Coombes some 18 months before the deceased's disappearance and you became good friends. You were in the habit of catching up with him once a week and would stop by his place for coffee on your way home from work. It was during one of those visits that you first met the deceased at Coombes' home. Coombes was then 55 years of age and you were 25 and, as was suggested by counsel on your behalf, you appear to have been influenced by him.

13 You have prior Magistrates' Court convictions for possession of cannabis and the use of cannabis in 2009, for both of which you were fined, and two other Magistrates' Court findings of possession of cannabis in 2003 and 2007, for which you were fined without entry of a conviction. For present purposes, I regard those offences as essentially irrelevant.

14 Turning then to factors which militate in your favour, once confronted with the facts you made a full and frank confession and offered to assist the Crown by giving evidence against Coombes. By pleading guilty you have saved the state and the court the cost and effort involved in a trial, and spared the witnesses who otherwise would have needed to give evidence. For that you are entitled to a discount on the sentence which would otherwise have been imposed. I also take your plea into account as an indication of genuine remorse and as a positive indication of your prospects of rehabilitation, and of the improbability of re-offending. Although your offer to given evidence against Coombes was of no utility to the Crown, because Coombes had by then confessed, I treat it as a further indication of remorse and as entitling you to some further degree of discount on the sentence which would otherwise have been imposed. Your lack of relevant prior convictions, strong work history and family support are persuasive indications that the risk of you re-offending is likely to be minimal and that your chances of rehabilitation are good. Given your antecedents, strong work ethic and close family support, I consider that there is little if any need for specific deterrence. In your case, the principal sentencing considerations are denunciation, general deterrence and just punishment.

15 A final mitigatory consideration urged by counsel on your behalf is that, despite your early offer to plead guilty, you have had to wait some 20 months to be dealt with and, because of your uncertainty as to the outcome, you have had to put important aspects of your life, like employment and personal relationships, effectively on hold. The delay in this case is not great. But, given your lack of relevant prior convictions, and the way in which you apply yourself to your work, I accept that there is something in what counsel says.

16 The maximum penalty for the offence of attempting to pervert the course of justice is 25 years' imprisonment, although, as Callaway JA remarked in DPP v Aydin and Kirsch,[3] that must be kept in perspective - it being the penalty reserved for the worst cases - and a sentencing judge should steer by the maximum penalty rather than aim at the maximum penalty. As I have said, I regard your offending as relatively serious, albeit falling short of the most serious category.

17 I am required by law to take into account current sentencing practices and, to that end, counsel referred to the following table of cases which, in Tognolini v R,[4] the Court of Appeal appears to have regarded as being in some respects representative of current sentencing practices for the offence of attempting to pervert the course of justice:

(2008) 75 ATR 545

[2005] VSCA 86

[2005] VSCA 265; (2005) 13 VR 85

[2005] VSCA 85; (2005) 11 VR 544

[2005] VSCA 87

[2000] VSCA 234; (2000) 117 A Crim R 114

[2007] VSCA 319

[1999] VSCA 94

[2007] VSCA 276

[2008] VSCA 22

[2001] VSCA 115

[2010] VSCA 63

[2003] VSCA 221

[2006] VSCA 75

[2008] VSCA 40

[2005] VSCA 24

[2008] VSCA 114

[2009] VSCA 81

[2002] VSCA 98

[2006] VSCA 203

[2004] VSCA 245

18 Counsel also placed considerable emphasis on R v Godfrey,[5] in which Coghlan J recently sentenced Nicole Godfrey to three years' imprisonment wholly suspended, except as to 51 days' pre-sentence detention, for attempting to pervert the course of justice. As appears from his Honour's sentencing remarks, Godfrey's offence consisted of providing a false alibi for Coombes in an attempt to assist him to escape detection for the murder of Rachael Betts. Counsel submitted on your behalf, and counsel for the Crown accepted, that the nature and gravity of your offending and your moral culpability were less than Godfrey's. The Crown also accepted that, in light of the sentence imposed in R v Godfrey, a wholly suspended sentence of imprisonment is within the range.

19 Although the cases to which counsel referred are of some assistance, there are several qualifications. First, the nature and gravity of offending covered by them varies widely, from making threats to potential witnesses, and attempting to bribe police, to a young offender making a false statement to police in an attempt to protect her equally young brother from prosecution for sexual penetration of a child under 16 years of age.

20 Secondly, of the cases referred to, it appears to me that the one which perhaps comes closest to yours is DPP v Josefski,[6] in which a sentence of 15 months imprisonment was imposed on a mother and father on pleading guilty to counts of attempting to pervert the course of justice constituted of providing false information to police in order to prevent their son's road traffic offences being detected. There is, however, a good deal difference between the nature and gravity of the Josefskis' offending and yours, and between the degrees of their and your moral culpability. Whereas they did what they did to save their son from the consequences of driving offences, your offending was intended to shield a drug trafficker, and had the effect of shielding a murderer, and your motivation for so offending remains less than clear.

21 Thirdly, in the course of the plea, counsel made particular reference to R v Johns,[7] in which a female offender received a suspended sentence of 23½ months' imprisonment for prevailing on a witness to her son's offence of arson to withdraw her witness statement; R v Carey,[8] in which 39 year old male offender was sentenced to two years' imprisonment for an offence of attempting to pervert the course of justice constituted of making threats in order to induce a witness to change his account of the offender's assault on his de facto wife; DPP v Josefski, to the facts of which I have already referred;[9] R v Aydin & Flett,[10] in which an articled clerk and a police officer were sentenced to two years and two years and six months' imprisonment respectively for offences of attempting to pervert the course of justice by bribing a policeman to interfere in a prosecution for drug offences; and DPP v Aydin and Kirsch,[11] in which an articled clerk was sentenced to two years and nine months' imprisonment for an offence of attempting to pervert the course of justice constituted of making threats to a police officer in order to influence him in relation to bail and the preferment of charges against the clerk's client. Of those cases, I regard R v Johns as providing some degree of guidance but I consider that the facts of the remainder are so different to render them largely irrelevant.

22 Fourthly, several of the cases referred to were Crown appeals against sentence, in which considerations of double jeopardy may have affected the outcome. Consequently, the sentences which were upheld or imposed in those cases cannot necessarily be regarded as indicative of the sentences which, other things being equal, ought to have been imposed.

23 Finally, as the Court of Appeal recently affirmed in R v Hudson,[12] although 'like' cases may provide some indication of the range that is open in the proper exercise of sentencing discretion, at best they provide a general guide or impression as to the appropriate range of sentences. Detailed examination of so-called 'like' cases in order to imply that a particular sentence is the correct one, or that the sentence should fall within a very narrow band, is inimical to the intuitive synthesis process and therefore impermissible. As the Court said:

Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of 'like' cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be

to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.[13]

24 I approach the task of sentencing you on that basis. Having regard to the nature and gravity of your offending, my assessment of your moral culpability, and current sentencing practices, and balancing those considerations as best I am able against the mitigative considerations to which I have referred, I have determined that you should be sentenced to two years and six months' imprisonment.

25 Other things being equal, I would order that you serve not less than 18 months of that term before being eligible for parole. In view, however, of your genuine remorse, limited risk of re-offending and prosects of rehabilitation, and, just as importantly, what appears to me to be your outstanding work ethic, I am persuaded that it is in the interests of justice that you serve the sentence within the community, and thus that it be suspended for the period of the term.

26 Mr Buscema, the purpose of suspending your sentence is to allow you to rehabilitate yourself by serving your sentence in the community as you continue to work and develop. The effect of suspending the sentence will be that you will not be required to go to gaol unless, within the next two years and six months, you commit any other offence punishable by imprisonment. If you do commit another offence punishable by imprisonment within that time, you may be brought back before the court, perhaps before me, and you would then be at risk of being ordered to serve up to the whole term of two years and six months in addition to being punished for that other offence. Do you understand?

27 Ryan Buscema, you have pleaded guilty to one count of attempting to pervert the course of justice, of which I now convict you.

28 On that count I sentence you to two years and six months' imprisonment, wholly suspended for the length of the suspended term.

29 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to three years' imprisonment and set a non-parole period of two years.

30 I direct that the fact of the declaration and its details be entered in the records of the Court.

[1] In Ranford v Western Australia (No 2) [2006] WASCA 243; (2006) 166 A Crim R 451, 462 (Roberts-Smith JA, Martin CJ and Pullin JA agreeing).

[2] See and compare The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 277-8; Tognolini v R [2011] VSCA 113, [42].

[3] [2005] VSCA 86, [9]-[12]; see also R v Yacoub [2006] VSCA 203, [36] (Eames JA).

[4] [2011] VSCA 113.

[5] [2011] VSC 179.

[6] [2005] VSCA 265; (2005) 13 VR 85.

[7] [2010] VSCA 63.

[8] [2007] VSCA 319.

[9] [2005] VSCA 265; (2005) 13 VR 85.

[10] [2005] VSCA 87.

[11] [2005] VSCA 86

[12] [2010] VSCA 332; applying Hili v The Queen [2010] HCA 45 (Unreported, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, 8 December 2010) [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[13] [2010] VSCA 332, [32].