R v Cottrell

District Court of NSW|2010-09-08

Count 4 - Convicted: Sentenced to a term of imprisonment of 9 months to commence on 08/09/10 and to expire on 07/06/11. I decline to set a non-parole period. Count 5 - Convicted: Sentenced to a term of imprisonment of 12 months to commence on 08/09/10 and to expire on 07/09/11. DECISION: Count 3 - Convicted: Sentenced to a term of imprisonment of 6 months to commence on 08/03/11 and to expire on 07/09/11. Count 2 - Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 6 months to commence on 08/03/11 and to expire on 07/09/11. The balance of the sentence being 9 months is to expire on 07/06/2012. Finding of special circumstances. Eligible for release to parole on 07/09/11. Count 1 - Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 6 months to commence on 08/03/11 and to expire on 07/09/11. The balance of the sentence being 12 months is to expire on 07/09/2012. Finding of special circumstances. Eligible for release to parole on 07/09/11.

CATCHWORDS: CRIME - Sentence - act with intent to pervert the course of justice, - subornation of perjury

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995

Markarian v The Queen (2005) 79 ALJR 1048: [2005] HCA 25 R v Einfeld [2010] NSWCCA 87 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v XX [2009] NSWCCA 115 Fahs v The Queen [2007] NSWCCA 26 R v Retsos [2006] NSWCCA 85 R v Nguyen (2004) 149 A Crim R 343 R v Giang [2001] NSWCCA 276

PARTIES: Regina Christoper Paul Cottrell

COUNSEL: Mr M Barr (Crown) Mr Wasilenia (Offender)

SOLICITORS: Director of Public Prosecutions Crimlaw (NSW) P/L - Offender

1 Christopher Paul Cottrell was found guilty by a jury of five offences after a trial extending over almost four weeks. Three offences, that is, counts 1 to 3, were contrary to s 391 Crimes Act 1900 which carries a maximum penalty of fourteen years imprisonment. Two offences, counts 4 and 5, were contrary to s 333(1) Crimes Act 1900, which each carry a maximum penalty of seven years imprisonment. The penalty for an offence of suborning a witness to give perjured evidence for a 'serious indictable offence' provided for in s 333(2) Crimes Act 1900 carries a greater maximum penalty of fourteen years imprisonment.

2 The first three counts were offences of causing, respectively, Christopher Roberts, Betty Papafilopoulos and Anthony Federico, to either make written statements, or notebook entries in the case of Federico, containing a false description of events relating to the detention and treatment of Todd Casserly on 12 September 2004, with intent to pervert the course of justice.

3 The first offence in time, count 3, was concerned with the notebook entries made by Mr Federico on 12 September 2004 shortly after the detention of Mr Casserly which I will refer to shortly. The other two offences, that is counts 1 to 2, were committed between 4 November 2004 and 30 November 2004 in relation to written statements made by Christopher Roberts in respect of count 1 and Betty Papafilopoulos in relation to count 2, which statements were in fact created in final form on 5 November 2004; but the subject of some further enquiry by RailCorp subsequently.

4 Counts 4 and 5 in the indictment were concerned with allegations arising from evidence given by Papafilopoulos and Federico at proceedings in the Local Court, in respect of a charge of assault brought against the accused and, of course, were related also to the circumstances leading up to the giving of that evidence on 17 March 2005, between 4 November 2004 and that date.

5 At the time of the commission of the offences the prisoner was a Chief Transit Officer for what I understand to be RailCorp, or what might otherwise be known as the State Rail Authority. I will refer to the Authority as RailCorp for the purposes of these remarks on sentence.

6 The offences related to the performance by the prisoner of his official duties. They arose out of the fact that on 12 September 2005 he was acting in a roving supervisory capacity of a team of Transit Officers at the Central Railway Station. On that date Christopher Roberts was the prisoner's offsider. These two men were in plain clothes. Papafilopoulos and Federico were working as a pair in uniform, as were other members of the prisoner's team. At least six members of the team, including the prisoner and Mr Roberts, gave evidence at the trial and as I understand it there were other members of the team either, on duty that day, or associated with the prisoner's duties from time to time.

7 The evidence established clearly that Mr Casserly was in company with two other men, Mr Kite who gave evidence and Mr McNamara, who did not give evidence. They were spoken to by Mr Federico around about 8am in an area of Central Railway Station. At that stage Federico was accompanied by Ms Papafilopoulos. She was a probationary officer and was apparently a person who had only gained her probationary status a short time before and was very inexperienced. Federico was slightly more experienced, but still relatively inexperienced as a Transit Officer.

8 The three men were seen by Federico to be acting suspiciously and when approached by Mr Federico and Ms Papafilopoulos they sought to evade questions from the officers about whether they were in possession of valid railway tickets. It is quite clear having conducted a view of the scene and having regard to the totality of the evidence, that at this time Mr Casserly and his friends were within an area where a valid ticket was required.

9 However, whilst Mr Casserly had a ticket, his friends did not. The three young men had been out to various clubs until about 5am that morning, which was a Sunday, and they were planning to return home by train at the time they were spoken to by Transit Officers. They were affected to various extents by alcohol. The evidence establishes that Mr Casserly was belligerent and uncooperative and his friends similarly, but less so. Mr Casserly's unseemly conduct and his complete failure to divulge the fact that he held a valid ticket created the situation in which he ultimately found himself and which led to this prisoner going to gaol.

10 He purportedly stood up for his rights as he saw them. The rights that he claimed to resist enquiry as to whether he had a ticket, he in fact did not have, as I understand it. The facts of the matter are that he was required to produce a ticket because he was in an area where one was required to have a ticket and he refused to do so. This refusal to produce his ticket was the catalyst for the prisoner's current downfall.

11 The three young men after initially being spoken to by Mr Federico moved from the upper level at Central Station near what I understand to be the country train platforms or the inter urban platforms down to an area on the lower suburban train concourse, referred to in the evidence as Barrier B. This was still, I hasten to say, within what I described as the ticketed area.

12 There Mr Casserly for a period of time behaved very badly. I have got absolutely no doubt that he used a great deal of bad language, refused to do what he was lawfully required to do and otherwise acted very uncooperatively. His two colleagues at this stage were somewhat less unruly. I have no doubt that Mr Casserly did not tell the truth to the jury in the trial about aspects of his conduct. For example, he denied swearing at relevant times for which there was overwhelming evidence in the case to contradict him.

13 In any event this confrontation between Casserly and Federico and Papafilopoulos led to a request for assistance and this brought the prisoner and Mr Roberts to the scene. The prisoner and Mr Roberts' superior experience and physicality led to them taking over the discussions that Federico was having with Casserly. Within a very short period of time these discussions prompted the movement by some force by the prisoner of Mr Casserly away from his colleagues to a place against a wall where he could be isolated from them and perhaps other officers.

14 The jury had access to a film of events at Barrier B taken from a fixed closed-circuit television camera. That exhibit, exhibit E, shows many of the relevant events occurring around Barrier B over the twenty-five minutes or so that Mr Casserly was in contact with Transit Officers in that area. There was no sound recording of the proceedings.

15 A large part of the case turned upon the issue of whether Mr Casserly in the course of the use of foul language and generally abusive and aggressive conduct, made a claim to Mr Cottrell or in the presence of Mr Cottrell, that he had a knife and related comments and whether he used aggressive actions towards the accused and/or other Transit Officers.

16 On the evidence in the trial given by the critical witnesses, Mr Casserly, Mr Roberts, Ms Papafilopoulos and Mr Federico, nobody heard Mr Casserly say that he had a knife, or say words related to the issue of possession of a knife in their various forms, as they emerged in the trial, and as was claimed by the prisoner.

17 In any event, within a short time of being moved from one position to another, the prisoner executed a leg sweep and forced Mr Casserly to the ground and there he remained under some form of physical restraint, including handcuffing, for a period of some minutes before being allowed to stand up, by which time he had calmed down somewhat. He remained standing, it seems from the film, for the vast majority of the time that he was in the presence of the accused.

18 I have no doubt that during this period of time the accused was, amongst other things, trying to get the man to calm down. Mr Casserly asserted loudly that he had been assaulted. He and his friends were detained for such period of time as particulars could be obtained from them for the issuing of various infringement notices, one of which was issued to Mr Casserly on the spot, two others sent to him at his address. The details of these infringement notices issued to Mr Casserly and his friends are not important in relation to this period of time.

19 After a period in the order of twenty minutes, from the time of the initial confrontation recorded by exhibit E at Barrier B, Mr Casserly and his friends left. Mr Casserly threatened to make a complaint to the police that he had been assaulted by Transit Officers and, I assume, particularly Mr Cottrell.

20 The five charges on the indictment emanate in effect from an attempt at a 'cover up', either to prevent the accused being charged with common assault, as is the situation in relation to counts 1 to 3, or being convicted of that charge of 'common assault' when it was brought by police on 9 November 2004, as arises in relation to counts 4 and 5.

21 Count 3, the first count in time, is concerned with the allegation from Mr Federico in essence that after Mr Casserly had left the scene, Mr Federico had been told by the prisoner in the area of the barrier, and subsequently, to put in his notebook, amongst other things, that Casserly was very aggressive, that Casserly had shoulder charged or barged him and that Casserly had claimed he had a knife and related comments. Further, in a subsequent debrief at the end of the shift when all members of the team were present, which is a normal occurrence, it was also alleged the prisoner gave Federico further directions about things that were said concerning the knife; including the fact that Casserly said he was joking. Federico made allegations that the prisoner's directions included a requirement for him in his notes to show that Casserly was generally more aggressive than he really was.

22 The essence of the Crown case, as it was finally left to the jury in relation to count 3 ultimately, was the claim by Federico that the prisoner instructed him to record in his notes that Casserly had said he had a knife. To prove this charge the Crown had to establish relevantly that this was a false description of events and that the prisoner knew that this was false. This matter, as with all the counts, turned upon proof, that any particular description of events particularised by the Crown in its very fair and focused closing address, were known to be untrue by the prisoner.

23 Interestingly there was evidence from Ms Papafilopoulos that the prisoner at the barrier, shortly after the incident, within minutes perhaps of Casserly leaving, or at about the time he left, asked transit officers generally, including herself, "Did you hear him say that he had a knife?" She says that to this Roberts and Federico replied words to the effect, "Yeah, yeah", but she said, "No". Ultimately Roberts and Federico, prepared statements that Mr Casserly had used words to this effect. Ms Papafilopoulos on her own version was never directed her, nor did the prisoner cause her, to include that claimed statement by Casserly in her statement.

24 Mr Casserly subsequently made a complaint to the police as to his treatment and an investigation by police ensued. Arrangements were apparently made for statements to be obtained, particularly from Federico, Papafilopoulos and Roberts to be submitted to the police to assist them in making a determination as to whether the prisoner should be charged with assault. As I have indicated a Court Attendance Notice was issued dated 9 November 2004.

25 Counts 1 and 2 relate to the prisoner allegedly discussing the matter of the preparation of the statements before 5 November with Roberts and Papafilopoulos and then on 5 November when the two transit officers came in to prepare their statements, either directing them, or actually typing himself into their statements, knowingly false descriptions of events. The two transit officers came to work that day at the Chalmers Street office of the transit officers but were directed to go to an area at Central Station called 'Platform One'. Chalmers Street is of course to the east of Central Railway Station. Platform One, which as I understand it is the platform where the Indian Pacific used to leave Central Station, is on the western extremity of the Central Station platforms.

26 As at 5 November, the prisoner was working there as some form of supervisor because he had been stood down from his duties as a Transit Officer several days before because of the pending investigation. They gave evidence in various ways that the prisoner at Platform One had given them instructions separately as to what was to be put in their statements. They sat at separate computer terminals, some short distance from one another. Much of what Ms Papafilopoulos spoke of in relation to this aspect of the matter was concerned with what seemed to me, and what seemed to the Crown in fairness, to be cosmetic matters of no real importance. She was inexperienced. She had in fact prepared a draft statement at an earlier time in November in somewhat strange circumstances in light of the circumstances of the prisoner being away on holidays beforehand and not requesting it directly. However, the essence of count 2 concerning her final statement was based upon the assertion that she made that she was instructed to put in her statement by the accused that she had seen Casserly push into the accused a couple of times and that the prisoner had pushed him back out of his personal space. The prisoner had allegedly asked her again at this time if she heard mention of a knife. She again said, "No", but as I understood her evidence he did not instruct her, nor cause her to state, or himself type, that she had heard mention of a knife by Casserly.

27 Count 1 is concerned with the allegation by Mr Roberts that the prisoner had told Mr Roberts to type in his statement, or that the prisoner himself typed in the statement, assertions such as, "I said that he may have a knife", 'Casserly said, "I will slash you cunts too"', the prisoner said, "Show me your hands", Casserly said, "I will cut you open", the prisoner had said to Casserly, '"Do you have anything on you that is dangerous and could harm us?", to which Casserly replied, "A fucking knife",' and that later Casserly had said, "I was joking about the knife." Mr Roberts said each of these assertions, and some other minor matters, were not heard or seen by him.

28 There are other aspects of the evidence relating to counts 1, 2 and 3 germane to proof but I have sought, given the extensive evidence at trial, to try and summarise the position as I will do so in relation to counts 4 and 5.

29 Mr Federico made a statement on 4 November 2004, apparently coming in from leave. This statement was largely based upon his notes and his recollection. As I understood his evidence no further details were provided by the prisoner at the very time of the making of the statement nor in fact was the prisoner present when the statement was made. That event, the evidence of further contact with the prisoner; conversations by phone, and the like, between the prisoner, Mr Federico and Ms Papafilopoulos after their respective statements were prepared and before the eventual court proceedings, were relevant to in essence what was alleged in relation to count 4 and count 5.

30 The prosecution of the prisoner in the Local Court on the charge of assaulting Casserly commenced in February 2005 and concluded on 17 March 2005 with the magistrate finding the prisoner 'guilty' of common assault. I am told the prisoner gave evidence, as did Federico, Papafilopoulos and Roberts. The only transcripts that were presented to the jury were the transcripts of Federico and Papafilopoulos at those proceedings because there was no charge relating to Mr Roberts' evidence for reasons I need not go in to.

31 In relation to count 4, at the hearing of the matter at the Local Court on 17 March 2005 Ms Papafilopoulos, amongst other things, gave evidence in accordance generally with her statement that Mr Casserly had pushed into the prisoner, that he had shoulder charged the prisoner and that in effect her statement in material respects was true and correct.

32 Before she gave evidence she claimed the prisoner had contacted her, or spoken to her at work, about her "sticking" to the contents of the statement when she gave evidence. She described it generally as being from time to time being told to "stick to the truth...the truth in the statement" or words to that effect.

33 In respect of count 5 the prosecution relies upon the circumstances as I said of the making of the statement by Mr Federico on 4 November and subsequent contact with the prisoner during work and by phone. I should point out in the course of the period of time between the laying of the charge against the prisoner and the commencement of the proceedings, there was some investigation conducted by RailCorp personnel and the subject matter of those inquiries and interrogations, resulting statements and the like, were raised in the trial, particularly in cross-examination of each of the relevant Crown witnesses.

34 The prisoner told Mr Federico to memorise his statement and Mr Federico alleged that the prisoner was in effect telling him to tell lies when he gave evidence, to say that Casserly had made threatening gestures, that Casserly had shoulder barged the prisoner, that Casserly had a knife on him. Mr Federico said amongst other things that the prisoner told him before he gave evidence that he was required to 'back up' the prisoner. He again largely gave evidence in accordance with his statement.

35 On the essential issue at the heart of count 5, that is the claimed reference to the knife by Mr Casserly, Federico, like Ms Papafilopoulos in interviews and in his evidence, added to the version that he claimed that had been put in his mind by the prisoner.

36 Counts 4 and 5 thus were concerned with the prisoner suborning the two witnesses to give perjured evidence that the prisoner knew to be untrue. As I said, Mr Roberts gave evidence and no charge arose in relation to his evidence for reasons I need not dwell upon.

37 The prisoner although found guilty by the Magistrate was acquitted on appeal to the Chief Judge of the District Court. That appeal was heard on 14 July 2005. I have read the learned Chief Judge's reasoning. Part of the Chief Judge's reasoning included his concern, having regard to the evidence of Federico and Papafilopoulos, as to whether the prosecution had excluded beyond reasonable doubt the lawfulness of the prisoner's conduct. Thus it could be fairly said that the acquittal of the prisoner on the transcript of the proceedings in the Local Court arose in part from evidence that Mr Federico and Ms Papafilopoulos said was perjured evidence, in effect.

38 Each of the principal complainants, if I may call them that, Mr Federico, Mr Roberts and Ms Papafilopoulos, gave evidence in this proceedings having firstly been given promises or inducements in relation to statements given to the police upon which the prosecutions for these charges were launched. They each gave evidence in this trial with the protection of certificates pursuant to the relevant provisions of the Evidence Act 1995. Those certificates, of course, are not protection against prosecution for perjuring in the trial.

39 They came to the position of having made such statements or giving such evidence, having from late November 2005 through to at least early to mid 2007, and as late as late 2007 in one instance, steadfastly maintaining that the statements they gave to the police investigation on 4 and 5 November and the various statements they have otherwise made, or interviews they had otherwise given during investigatory proceedings, were essentially accurate in relation to the circumstances of the detention of Mr Casserly.

40 The various statements, or interviews made, or given, involve of course a great deal of additional information or assertions to that contained in the original statements, not specifically requested or directed by the prisoner. It would seem that particularly Mr Federico and Ms Papafilopoulos, despite their internal qualms and misgivings, became quite practised liars. They, to varying extents, claim the prisoner pressured them, or encouraged them, to stick to the essential stories they had recounted in their statements from the time of making those respective statements in early November until they gave evidence at the Local Court. This included dealing with the various investigations that were unfolding under the auspices of RailCorp.

41 When police became involved in the investigation of whether there was perjured evidence or, other offences relating to the prosecution of the prisoner for assault, they initially told the investigator, Detective Pianta, that their statements and evidence were true.

42 In the trial the prisoner gave evidence denying telling Federico to put false entries in his notebook, telling Papafilopoulos what to put in their statements or in fact typing relevant changes in their statements and also denied discussing with all the witnesses what evidence they should give at the Local Court or pressuring them in any way. The verdicts, given the very fair way the prosecution conducted and put its case, were not however necessarily expected. Mr Casserly was on the totality of the evidence at least clearly verbally aggressive to Mr Cottrell and other Transit Officers, completely uncooperative until he was subdued by Mr Cottrell, stood his ground in the face of requests for assistance from a number of Transit Officers exercising their duties and requiring him to produce a valid ticket, which he refused to do so when asked.

43 He was contradicted in his evidence as to his own conduct by both friend and foe to the Crown case in many material respects. It should be fairly said that the prisoner was an impressive witness in many respects. Whilst he was impressive in his presentation and manner, the jury did not accept the essential aspects of his evidence, or at the very least did not believe his relevant versions concerning each count were reasonably possible.

44 It must be fairly said that Mr Federico, Ms Papafilopoulos and Mr Roberts in various ways were not as impressive. Witnesses who come to court under protection of inducements and certificates start with a disadvantage. The jury was adequately warned in this regard. Ms Papafilopoulos, it would appear from the evidence she gave and her presentation, saw herself as something of a victim in this matter. She no doubt has suffered as a result of these events. But not as much as the prisoner ultimately. Mr Federico in my view was prone to overstatement and considerable self justification.

45 There were a number of deficiencies in relation to their evidence. Some of these matters of course centred on collateral issues more than central issues in the trial. It should be pointed out from their own evidence emerged the fact, at least from the evidence of Ms Papafilopoulos, that the prisoner raised the issue of Casserly claiming to have a knife to transit officers shortly after the relevant event occurred. True it is he may have done this to protect himself in light of Casserly's claims of going to the police. It seemed a rather unusual thing for the prisoner to raise given the versions of the officers as to what occurred in the course of the detention of Mr Casserly. In fairness to the versions of the principal Crown witnesses, they were all adamant that Casserly himself did not mention a knife and was not heard by them so to do.

46 Federico was told to include in his notes that badges were shown which he did not hear. This fell away as a real and material issue in the case, particularly when it emerged that Mr Roberts generally supported the prisoner's version in this regard.

47 Mr Roberts' account of the interaction of the prisoner with Mr Casserly did support in material respects many of the aspects of the prisoner's account, save primarily of course in relation to the issue of Mr Casserly claiming to have a knife.

48 The accounts Mr Federico, Mr Roberts and Ms Papafilopoulos gave of subsequent discussions with the prisoner on 12 September, particularly at the debrief, were somewhat at odds with one another, as were the recollections of Papafilopoulos and Federico as to what happened when they wrote up their notes or diaries after the incident. The accounts of Papafilopoulos and Roberts were generally in accord as to the circumstances of the preparation of their statements on 5 November insofar as they spoke of the prisoner's presence in the preparation of each other's statement. However, interestingly neither of them claimed the prisoner sought to have them read the other's completed statement before each of them went off to have their respective statements witnessed by another member of the staff at the same time.

49 However, I should point out that the prisoner's evidence did not really address the rather unusual circumstance of these officers being sent to an area where he was working, when they could have prepared their statements elsewhere in their own offices. On the prisoner's account, even though they were typing up statements in relation to a matter directly concerning the prisoner, he never once queried them as to what they were doing at Platform One. This was a difficult matter for the prisoner to overcome, but then again he was never directly requested by the prosecution to explain this situation.

50 Mr Federico primarily, and Ms Papafilopoulos and Mr Roberts to a lesser degree, admitted to adding things to their recollections in their first and subsequent statements that were not prompted by the prisoner. Each of their accounts at trial were punctuated in many respects with uncertainty whether particular events occurred, or not, on 12 September during the interaction with Mr Casserly.

51 The Customer Service Officer, Mr O'Rourke, who could reasonably be said to be independent of the prisoner and the principal Crown witnesses, gave an account which when ultimately analysed might have been relied upon to confirm the Crown cases to the circumstances of the alleged assault, but was in reality, by reference to exhibit E, contradicted by that filmed version of events, particularly as to the position in which Mr O'Rourke says he was when he specifically observed, or purportedly, relevant events. In my view, ultimately, his evidence could not exclude the reasonable possibility that Mr Casserly had not made threats, had not been aggressive or in fact had not been assaulted.

52 The closed-circuit television footage in exhibit E show Mr O'Rourke to be in a position to make observations that he claims, but at a time after the taking of Mr Casserly to the ground, which was the relevant time of the gravamen of the allegation of assault. Of course, the events leading up to Mr Casserly being taken to the ground and subdued were at the heart of the issues for determination in relation to counts 1 to 5. Then again exhibit E, did not entirely confirm the prisoner's account, particularly in the context of the speed in which the prisoner acted from the time he first approached Casserly until Mr Casserly was subdued.

53 The Crown produced some phone records suggestive of extensive conduct by the prisoner with either one or the other of the principal Crown witnesses from early November 2004, throughout the next four weeks or so. This was with Roberts, Papafilopoulos and Federico, either before or after one or other of them made their respective statements on 4 and 5 November. Whilst Ms Papafilopoulos gave some details of telephone conversations, as did Mr Federico, in my view these details were very general and were not necessarily supported by the telephone records. Mr Federico and Mr Roberts it must be fairly said only had very general recollection of telephone conversation which is only natural after such a long period of time. The accused indicated that notwithstanding the fact that he was suspended shortly before 5 November he still had reasons to be in contact with officers under his command afterwards, but he likewise was unable to provide much detail which ultimately mattered. This aspect was neither here nor there in the outcome of the case.

54 Ms Papafilopoulos was obviously aware of the need for preparation of a statement of her own motion. It is clear, in my view, she prepared a draft statement, which was exhibit G, in the absence of any direction from the prisoner. This draft statement she endeavoured to email to him but it was not received. She also appeared to attempt to call him that day but did not speak to him on the night that that statement was prepared. Of course that draft statement was the basis upon which exhibit H, was prepared with the input of the prisoner at the heart of Count 2.

55 It is highly unusual for Ms Papafilopoulos and Mr Roberts to prepare their statements for a police investigation in the presence of the prisoner by leaving their Chalmers Street office to go to the other side of Central Railway Station. Of course, ultimately all these matters were matters for a jury to resolve and each party had full opportunity to put their competing arguments to the jury to consider.

56 It must be said that the matter is not one in which I am expressing any opinion about whether the accused should have been convicted or not. The matters that I have briefly outlined and many others that were raised in the contentions of the parties were matters upon which it may be said reasonable minds may differ. The fact of the matter is that the jury was satisfied by the fair conduct of the Crown case to the requisite standard of the guilt of the prisoner in respect of each count; the law and relevant factual matters having been left to the jury to judge without any material complaint by either party.

57 The prisoner was born on 6 June 1966. I have a body of evidence relating to his circumstances, some in the Crown case, some in the defence case. In the Crown case I have his criminal history which shows that he is a man without prior criminal convictions which I take into account. Naturally the Probation and Parole Service reports that he has had no prior contact with the Service. The Probation and Parole report is somewhat perfunctory in the context of the prisoner, without criticising him, maintaining his innocence. He gives some detail of his background which is set out in somewhat greater detail in the psychological report to which I will refer shortly.

58 The prisoner has no drug or alcohol or mental health issues. He impressed the Probation and Parole Service officer in interview and displayed a degree of stress and anxiety which is only natural in the circumstances. He is assessed as being unlikely to require or benefit from supervision from this Service. He does not appear to have any outstanding issues that require intervention through this service. He is suitable for community service, but for reasons which are self evident and which will be explained shortly, a custodial sentence must be imposed.

59 So far as his personal history is concerned, he was born in New Zealand in the town of Timaru, which I understand to be the home of Phar Lap in fact. He moved to Australia when he was about fifteen years of age. His father died when he was young. Prior to his death his mother remarried when he was three or four years of age and he had a close relationship with his mother and his stepfather. He had at least one half sibling.

60 When he was eighteen years of age he worked in the township of Bourke in northwestern New South Wales. He was married when he was about twenty-six years of age, having been in a relationship with his wife for approximately four years prior to the marriage. They have two children, a son aged twenty years and a daughter aged nineteen years. He is a sociable person who has never had difficulties with either finding employment or with the abuse of alcohol and there is no record of drug usage.

61 He was something of a sportsman. He presents as a very athletic, fit man. He worked with Woolworths for a period of time and then he became a Prison Officer with the Department of Corrective Services for thirteen years and I have a number of certificates relating to his employment in the Department of Corrective Services and also I have a letter of recommendation written by Mr Yabsley, the former Minister for Corrective Services which I have taken into account.

62 I say in passing of course that the fact that he was a Prison Officer is a matter that I must take into account in the sentencing of the offender. No evidence has been led before me, I hasten to say, of any particular hardships the prisoner will suffer in custody. I have not been favoured with any evidence from the Department of Corrective Services about difficulties that might arise in relation to his classification. I am very mindful of the fact that having been a Prison Officer there are risks for the prisoner in custody. Particularly if he should come into contact with persons who either know that he has been a Prison Officer, which may be seen to be a likely occurrence, or because prisoners have had direct contact with him when he was a Prison Officer and they were serving terms of imprisonment.

63 I will make recommendations in relation to his classification so far as I can based upon the information provided to me by learned counsel for the prisoner. Otherwise the matter of him being a prison officer is a matter that I can take into account to the limited extent that I have identified.

64 He worked as a private investigator apparently for a period of three years and he then obtained an appointment as a Transit Officer with RailCorp, I can assume shortly after that service was re-formed. He became a Chief Transit Officer, obviously a position of seniority and importance given the large number of people under his supervision.

65 It is reported in the history that he gave to the psychologist that he did suffer a fractured vertebrae in his back and he has had a knee injury for which he has received surgery, but these injuries have been successfully resolved.

66 Whilst in the service of the Corrective Services he was spat upon by an inmate and had fears of contracting HIV, which did not eventuate. He was also involved in an altercation after, according to the dates in the psychologist's report, the events with which I am concerned, whilst employed by RailCorp and suffered some anxiety as a result, not because of his own actions, but because of those persons that he was seeking to subdue.

67 I have been through Mr Taylor's report. Ultimately it reports that there are no psychological or psychiatric issues that could explain the offending for which the prisoner is to be sentenced. Mr Taylor was of the opinion, which I accept, that the prisoner did not seek to manufacture or exaggerate problems in his functioning. The prisoner has reasonably stable personality functioning. He is not clinically depressed or anxious, although he does suffer reactive anxiety in the circumstances. He does not have a predisposition to engage in substance abuse. He has adequate drive and impulse control. He is not prone to short-sighted behaviour or risk taking activity. He does not have any anger pathology. He is pro-social in his thinking and attitudes. He is, by and large, on the psychological testing undertaken by Mr Taylor which I accept, a perfectly normal person.

68 It follows given his lack of criminal history that he has a very low risk of recidivism under the examination of various tests that were applied to him. He has average intellectual ability and this is consistent with his statement concerning his education and employment, although I do appreciate that his education opportunities may well have been limited by life circumstances beyond his control.

69 He has been engaged with his family throughout his married life. He suffers no personality disorder or emotional disturbance and according to Mr Taylor there is no reason to believe that there is any aspect of his makeup that would cause the Court to fear that he would be at risk of re-offending.

70 I have a body of references that have been provided by both a current employer conducting a contract cleaning business and various people that have had contact with him over a period of time. Peter Punch, who I understand is a former Member of Parliament, has had association with the prisoner through charitable works, particularly connected with a golf club and other people of substance in business and the like have attested to aspects of the prisoner's personality and character. Each of them expresses surprise at the allegations against the prisoner, both in respect of allegation of assault and also committing offences against the good order of justice.

71 The prisoner is regarded by his current employer as an excellent employee who is responsible, hard working, honest. Each of the referees speak of his excellent character in a range of ways. He is described by the licensee of a McDonald's store as being a person of high ethics. He is described as generous in his time in helping others, both within his own community and beyond his community. He is spoken of as a helpful neighbour and as a good husband and a good father to his children.

72 There is a reference from a former colleague of his, within the Corrective Services Department, who speaks of the prisoner's bravery in the execution of his duties; helping an injured colleague who was badly burnt after an explosion and fire and also speaks of the lack of evidence in his conduct previously that he would behave in the way proven in this trial.

73 There is reference to the personal shame the prisoner feels naturally arising out of this matter. I do accept that the prisoner in a range of ways both through his generosity to the wider community in his conduct with his service duties in various ways, by his family responsibilities and in other respects is a man of excellent character.

74 I have referred to the fact that I have been provided with a number of certificates and attestations to the qualification of the prisoner and the value that the prisoner has in the eyes of those who have supervised him, including, apart from Mr Yabsley, a Governor of Parramatta gaol.

75 The prisoner also has produced commendations in relation to work that he performed at the State Rail Authority, although he was dismissed from that employment directly arising out of the matters with which I am now concerned earlier this year.

76 There was evidence given by Mr Bradley, the father-in-law of the prisoner. His evidence in general terms I accept. The prisoner is a devoted and loyal partner to Mr Bradley's daughter and a devoted and attentive father to his children. I accept the prisoner, as other material suggests, has been involved in mentoring and coaching young people in sport, particularly in rugby league and baseball, giving up a great deal of his time voluntarily for those and other community minded efforts. He is well regarded both within his family and community as a man of industry and integrity.

77 Mr Bradley spoke of the prisoner's loss of employment and the fact that notwithstanding this he obtained employment with a cleaning company and has worked industriously with that company, but has suffered a significant reduction in income. It is open to find that the prisoner has suffered a fall from grace of significant proportions and I have taken that into account. I have taken into account all the evidence that has been presented by both the prosecution and defence relevant to the sentencing proceedings.

78 So far as the submissions are concerned I will not deal with all the submissions that have been put, but some I need to refer to because some involve issues of principle that I need to take into account in sentencing the prisoner, although I have had regard to all submissions that have been put.

79 On behalf of the prisoner it was put that I should take into account the prisoner's disgrace and humiliation, the impact upon his wife and family from his offending, his loss of good standing in the community, the loss of his professional capacity, the effect upon his earning capacity in the past and in the future as a result and the fact that he forever will be denied the opportunity to work in the area of law enforcement where he has been involved for over twenty years. It is clear each of these matters has been established on the evidence. Of course a number of them are inevitable consequences of offending of this type and certainly no individual matter or in combination the various matters identified in this respect by Mr Wasilenia in his skilful address raise any "exceptional circumstances". But they are, to varying degrees, relevant in the general consideration of factors relevant to sentencing and will be weighed up in the matter as dictated by the decision of the High Court in Markarian [2005] HCA 25.

80 It was submitted that some of these matters or these matters in combination constitute "extra curial punishment". This is a matter of some debate and one would only need to read the judgment of the Court of Criminal Appeal concerning the sentencing of Marcus Einfeld in R v Einfeld [2010] NSWCCA 87 to see why. I have particularly had regard to [87] to [91] of that judgment, where the issue of extra curial punishment was discussed in a general sense. I have also had regard to the various aspects of "extra curial punishment" as they were referred to by the sentencing judge, Justice James. I am not required to do a comparison between this prisoner and the learned former judge of the Federal Court, sentenced by James J. the cases are very different in a range of ways.

81 In any event, ultimately it seems that the issue of whether there is extra curial punishment concerns consideration of matters that directly arise from the circumstances of the commission of the offence, which on another view of it must aggravate to varying extents the objective criminality of the offending; particularly in the context of the submissions made by Mr Wasilenia about the consequences of the prisoner's conviction or his conduct. It is to be noted that these offences were committed in the course of the prisoner's employment as a law enforcement officer and these offences were committed by the prisoner to protect himself from conviction and/or to preserve his employment.

82 The consequences of his misconduct, particularly loss of employment, loss of income, loss of involvement in law enforcement, might be properly regarded as 'protective', as that word is used in the judgment Einfeld, rather than punitive. But of course the humiliation and effect upon his family, the consequences of being sent to prison and the like are matters that I still must take into account.

83 I accept the submission put by learned counsel for the prisoner that the prisoner has excellent prospects of rehabilitation. In fact I see no evidence of any likelihood of a repeat of this type of offending or any other offending for that matter. Obviously the prisoner's opportunity to do acts with the intent to pervert the course of justice and the like will be non-existent in the future, unless he came under further adverse notice which I very much doubt.

84 The circumstances in which the prisoner finds himself now are not the consequence of a person having a particular attitude or acting in a particular characteristic way. The conduct of the prisoner more fairly could be said to be uncharacteristic arising out of the rather unusual circumstances in which the events giving rise to the charges arose.

85 I am required to sentence the prisoner, as was made clear in the submissions of both the learned Crown Prosecutor and learned counsel for the accused, having regard to the totality of the criminality. I must fix appropriate sentences for each offence and I must in that context have regard to the observations of the majority in Pearce v R (1998) 194 CLR 610, particularly at [45] and surrounding paragraphs. I also have regard to the observations of Justice Hall in relation to this aspect of the matter when sentencing for a number of offences, particularly those that are related to one another, set out in the recent judgment of R v XX [2009] NSWCCA 115 (at [52]).

86 In this matter I propose to reflect the totality of the criminality by fixing separate sentences for each offence, reflecting in each sentence the context of the maximum penalty, taking into account the objective features and the relevant subjective features. I propose to partially accumulate the offences for making false statements or providing false description of events, given the greater maximum penalties for those offences pursuant to s 391 Crimes Act, upon the sentences for suborning of the witnesses to commit perjury contrary to s 333(1) of the Act, although those offences were first in time. The offences clearly overlap in many respects.

87 I have had close regard to the statistics provided by parties. For various reasons they provide little concrete guidance given the absence in the statistics of the status of the particular offenders and the particular facts giving rise to each of the charges and the relationship of the status of the particular offender to the offending behaviour. They merely provide a thumbnail sketch of the range of penalties imposed in a relatively limited number of cases.

88 As I understood the statistics, for all offenders for offences contrary to s 319, thankfully I suppose, there are only a total of seventy-five cases. Out of that seventy-five cases, forty per cent of the offenders were sentenced to imprisonment. Whilst there are some statistics that deal with consecutive and non-consecutive terms of imprisonment, the statistics do not differentiate between cases where there are singular acts of criminality and sentences imposed in the context of multiple acts of criminality, as occurred here.

89 I accept the submission of the prisoner's counsel that the conduct of the prisoner in relation to all the counts was in reality "largely unnecessary" and a "surprising overreaction". Clearly the prisoner was deeply concerned that he would be charged and that he may be convicted. I must say, however, that his guilt of the charge of the assault on the evidence I have heard in this matter that is not disputed, was something upon which reasonable minds may differ. This is without regard to the tainted the evidence, the subject of the various charges. I am mindful of course of the aggressive and unreasonable conduct of Mr Casserly, but I am also mindful of course that, however unreasonably Mr Casserly behaved, he had a right not to be assaulted by public officials and the protection of members of the public from official abuse must be jealously guarded.

90 The Crown submits, having regard to the issues that were decided by the jury that were fairly left to it by the learned Crown Prosecutor, that the sentences I impose should be partially accumulative in some way. I have already indicated how I propose to approach that matter but I do accept that there may be a number of configurations that one could undertake to arrive at an effective sentence reflecting the totality of the criminality. Again, this is a matter upon which reasonable minds may differ. I believe the appropriate approach is to reflect the different courses of conduct reflected by the tenor of the charges as was pointed out by the prosecutor.

91 The Crown submits, with which I agree, that the prisoner's offending in relation to count 3 was more spontaneous conduct than premeditated conduct, for reasons I need not dwell upon, occurring immediately after the interaction with Mr Casserly. Certainly it was undertaken without knowledge that Casserly would in fact go to the police and certainly it was made without knowledge that there were in fact pending charges. The same cannot be said of counts 1 to 2, or of course counts 4 and 5. There must have been considerable premeditation given the circumstances upon which the Crown relied to prove counts 1 and 2, and even greater premeditation for ostensibly the less serious charges by reason of applicable maximum penalties, set out in count 4 and 5.

92 Counts 1 and 2 were specifically committed to avoid prosecution and possibly to prevent the end of any career prospects of the prisoner at RailCorp. Counts 1 and 2 of course followed upon the steps taken in relation to count 3 and of course the preparation of the occurrence log entry on 12 September 2004 which became exhibit P. It might be said that exhibit P, on the Crown case, reflected the fact that he had taken a further step at that point to shore up his position. I have already noted, in the context of the significance of the prisoner causing others to falsely claim that they heard Casserly refer to a knife, there is some mention of the prisoner asking about whether the transit officers heard mention of a knife by Casserly. This event needs to be understood in the context of events happening very quickly and no doubt the prisoner's reaction in part to the detention of Mr Casserly and the surrounding circumstances was prompted by emotions that may have arisen given Casserly's attitude and the physical steps taken to quell him or restrain him. I am not excusing the prisoner's conduct, but some of the consequences of these events might seem to be a reflection of what might be called the 'heat of the moment', sustained for a period of time.

93 Counts 4 and 5 of course carry lower maximum penalties. Counts 4 and 5, along with counts 1 to 3, do not have present in my view the aggravation of 'planning' as contemplated by s 21A(2) Crimes (Sentencing Procedure) Act 1999. As was submitted by the Crown it was the only relevant "aggravating factor" to which the Crown referred. I have had close regard to the judgment of Justice Howie in Fahs v The Queen [2007] NSWCCA 26. Of course the offences, other than count 3, have elements of premeditation to varying degrees but I do not believe they have relevant qualities of planning contemplated by the legislature as an aggravating factor, beyond of course the planning requisite for the offence to be committed in the first place.

94 The offences of course, although very much interrelated and very closely connected, were in fact related to conduct over an extended period of time. At the very least, putting aside the reaction of the prisoner on 12 September, from early November right through until 17 March. Then again, of course, the proceedings in the Local Court were proceeding over that period of time.

95 In the Crown's very helpful written submissions there are a number of principles set out there that were not disputed by counsel for the prisoner. In summary the Crown's submissions, which I generally accept, are that the position of the prisoner as a law enforcement officer and his relationship of supervision or superior rank to the principal Crown witnesses, given also the fact that particularly Federico and Papafilopoulos were less experienced officers, are an aggravation of the offending conduct.

96 Further, consideration of the objective facts must take into account that he was an experienced law enforcement officer in a range of ways. To put it in blunt terms, the prisoner would have had full contemplation in my view of the potential consequences of his actions; see R v Retsos [2006] NSWCCA 85, particularly at [31].

97 A public official committing an offence against "justice" is regarded as a significant matter in aggravation of offending of this type. It is at least certainly a relevant consideration as was discussed in the decision of Nguyen (2004) 149 ACrimR 343, particularly at [38], although Nguyen was concerned with conduct which did not occur in the course of the person's official duty.

98 I also take into account the observations of Justice McClellan, now the learned Chief Judge at Common Law, in the decision of R v Giang [2001] NSWCCA 276, particularly at [26] - [27], concerning the fact that the prisoner was the 'instigator' of the offences.

99 These offences were committed for the benefit of the offender; a matter discussed in Einfeld. Ultimately the conduct of the prisoner was a contributing factor for his acquittal on appeal, as the judgment of Justice Blanch, the learned Chief Judge of this Court made clear. It is to borne in mind, as the Crown properly points out, that each case must be considered on its facts and the consequences of the offending conduct or the matters to which it is directed are relevant matters in the factual mix. The prisoner was obviously attempting to protect his employment. A conviction of assault would have ended it, one would have thought, in the normal course of events.

100 On the other hand the offence with which he was charged in the first place was a minor offence in an objective sense. Serious to be brought against a law enforcement officer, but objectively minor. Mr Casserly suffered no real injury. The restraint of the prisoner that could reasonably constitute an assault was only a matter of minutes and I bear in mind of course that the prisoner, it would seem on the legal principles that apply, had some right of arrest, or right to detain, to ensure that proper enquiry could be made of Mr Casserly and his colleagues to ensure that they had valid tickets or not, and also to deal with any other alleged offences that he may have committed through his abusive and aggressive conduct towards Transit Officers.

101 The 'assault' alleged was not entirely unprovoked in one sense, but certainly was not premeditated. It seems to me, given what I saw in exhibit E, to be more of a spontaneous reaction to a deteriorating situation of Mr Casserly's making to a large degree. Of course I am not in any way condoning the illegal use of force upon customers of State Rail or any other citizen, but in reality the force was in the scheme of things minimal and incidental to a course of conduct of restraining a man rather than simply seeking to inflict upon that man some form of gratuitous punishment.

102 I have had regard to s 3A Crimes (Sentencing Procedure) Act and of course each of the matters therein described are to be considered in the balancing exercise that is required when examining the purposes of sentencing.

103 With regard to aggravating factors, whilst it may be possibly said that some of the offences involved "a series of criminal acts" in the sense that the prisoner for example in relation to counts 4 and 5 continued with his importuning of Ms Papafilopoulos and Mr Federico. Ultimately, I cannot conclude that it is a relevant "aggravating factor" as s 21A(2)(m) contemplates. It was not submitted so to be by the Crown.

104 With regard to s 21A(3), bearing in mind of course the terms of s 21A(1) and bearing in mind of course the fact that any aggravating or mitigating factor is relevant and known to the Court does not require the Court to increase or reduce the sentence for an offence, I have come to the conclusion that the offences were not part of a planned or organised criminal activity, the prisoner does not have any record of previous convictions, the prisoner was a person of excellent character, the prisoner is unlikely to re-offend and the prisoner has good prospects of rehabilitation. None of the other matters are clearly relevant.

105 Ultimately, the overall outcome of the manner in which the outcome has been reached leaves one with a feeling of some disquiet in some respects. Firstly, whilst Mr Casserly is fully deserving of the protection of the law and to have his rights protected by the law, his conduct brought no credit on himself and in my view he ultimately got away with telling lies in this Court about his conduct on the day in question. However, as it turned out the matters in which, in my view, he told lies were not germane to the jury's verdict, having regard to other evidence,

106 Each of the so called principal witnesses relied upon by the Crown is, on their own account, an unconvicted perjurer who has only given evidence it would seem because of the benefit of various inducements, promises not to be prosecuted and/or certificates under the Evidence Act. Their purported misdeeds will never, one would imagine, be found in their curriculum vitae. I appreciate that each of them has suffered in their careers at RailCorp, as I understand it. Although I do not have many details about this. Such conduct as may have been the subject of any disciplinary action by RailCorp against them could only be regarded as protective rather than punitive in character as was discussed in the decision of Einfeld.

107 Of course, the deceits and lies they admit to making were not for the benefit of themselves, but for the benefit of the prisoner, after, on their accounts, succumbing to pressures or influences from the prisoner and possibly others. However, they were performing official duties and the fact that they have suffered no real punishment at all is ironic given the fact that the prisoner now finds himself in his current situation, as initially he came to the aid of Papafilopoulos and Federico because they were too inexperienced to really perform the duties required of them by their employer. Ultimately, when one looks at the fall of the prisoner in this matter, one is reminded of the words not of Shakespeare, but of Sir Walter Scott: "Oh what a tangled web we weave when first we practise to deceive."

108 In fixing the sentences of course I have distinguished, or endeavoured to distinguish between the objective seriousness of each matter in the context of the matters I have outlined.

109 Mr Cottrell having regard to all the material that has been put and all the submissions, in respect of count 4 you are convicted. You are sentenced to nine months imprisonment. That will date from today, 8 September 2010, and that sentence will expire on 7 June 2011.

110 In relation to count 5 you are convicted. You are sentenced to twelve months imprisonment. That term of imprisonment will date from 8 September 2010 and expire on 7 September 2011. I decline to fix a non-parole period for that matter for reasons I will make clear in a moment.

111 In relation to count 3 you are convicted. You are sentenced to six months imprisonment. That will date from 8 March 2011. That sentence will expire on 7 September 2011.

112 In relation to count 2 you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of six months. That will date from 8 March 2011 and expire on 7 March 2011. In relation to count 2 I fix a balance of sentence of nine months and I direct that you be released to parole on 7 September 2011.

113 In relation to count 1 you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of six months. This will date from 8 March 2011 and expire on 7 September 2011. In relation to that sentence I fix a balance of sentence of twelve months, expiring, as I calculate it, on 7 September 2012.

114 In relation to the fixing of the non-parole periods I have found special circumstances pursuant to s 44 Crime (Sentencing Procedure) Act. The special circumstances in this matter requiring an adjustment of the relationship of he non-parole period to the balance of sentence are as follows. Firstly, there is a partial accumulation of sentences which of itself is in fact a special circumstance. Notwithstanding the fact that the Probation and Parole Service believes the prisoner does not require supervision given no outstanding socio-pathological issues, I am of the view the prisoner will need an extended period of supervision to adjust to community living and to receive assistance and direction in relation to matters concerning his employment and perhaps personal issues that will arise out of his custody, particularly having regard to his past history as a Corrective Services officer.

115 In relation to the sentence I have imposed - what was the name of that institution, Mr Wasilenia?

116 WASILENIA: Your Honour, could I make a submission about the recommendation your Honour could make. If I can just hand up the letter your Honour will see why.

117 HIS HONOUR: Before I get to the recommendation, firstly, are there any technical matters, Mr Crown?

121 HIS HONOUR: Any errors in my dates? One needs a slide rule and a calendar and a whole raft of mechanical aids to sometimes fix sentences.

122 BARR: I'm hoping my instructing solicitor has better notes of the dates than what I have.

123 HIS HONOUR: The total sentence, Mr Cottrell, by the way is two years with a non-parole period of 12 months. You've tendered a letter from the Department of Corrective Services addressed to Sue Wilson.

124 WASILENIA: No, your Honour, Sue Wilson wrote the letter.

125 HIS HONOUR: She wrote the letter addressed to Rafaella.

127 HIS HONOUR: Have you seen that letter, Mr Crown?

131 EXHIBIT #11 LETTER TENDERED, ADMITTED WITHOUT OBJECTION

132 HIS HONOUR: So in other words you don't want me to make a recommendation?

133 WASILENIA: I do. Can I just explain what the nature of the recommendation is, your Honour?

135 WASILENIA: It's based upon paras 2 and 3. What I was going to ask your Honour to consider was making a recommendation that your Honour recommends that the prisoner be forthwith signed onto a protection order for placement into a special management area such as the Dawn De Lois Centre in Sydney.

136 HIS HONOUR: I had a transcript of the submissions and I got it out to ensure that I had a record of what everybody said given the length of time between those submissions and sentencing: "And take all other steps necessary for the protection of the prisoner in his transportation", because reading the letter it's not entirely clear who might have to make the necessary order. I don't know. Is that suitable?

138 HIS HONOUR: Anything you want to say about that, Mr Crown?

140 HIS HONOUR: I'll have this typed up and placed with the warrant. I'll ask my associate to type this up as a separate document. But in making the orders I've made I recommend to the officers of the Department of Corrective Services that the prisoner be signed on to a protection order for placement into a Special Management Area such as the Dawn De Lois Centre and that correctional officers take all necessary steps for the protection of the prisoner in his transportation.

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