R v Croke [2020] NSWDC 460 | Case summary

District Court of NSW|2020-06-25

Judgment

On the 20th April 2020 Mr Croke was found guilty by a jury of the following offences: Count 1. On the 4th April 2012 he made a false representation with intent in any way to pervert the course of justice. Count 2. On the 4th April 2012 he published a statement which was false or misleading with the intent of obtaining a financial advantage. Count 3. On the 15th April 2012 he published a statement, a statutory declaration, which was false or misleading statement with the intent of obtaining a financial advantage. Count 4. On 14 May 2012 he published a statement, a tax return, which was false or misleading in a material particular, with the intent of obtaining a financial advantage. Count 5. On the 28th May 2014 made a false assertion with intent to pervert the course of justice. Count 6. Between the 9th April 2012 and the 30th November 2014 he participated in a criminal group with Andrew Mc Manus and Owen Hanson and Craig Haeusler, knowing at the time that his participation contributed to the occurrence of criminal activity.
The maximum penalties for the offences in which the intent was to pervert the course of justice (Counts 2 & 5) is 14 years. The maximum penalty for the offences where the intent is to obtain a financial advantage (counts 1, 3 & 4) and being a member of a criminal group (count 6) is 5 years.

FACTS

The crown has presented a document (ex 5 in the sentence proceedings) which is an abbreviated form of the facts presented at trial. It is accurate. I propose to summarise the relevant matters for consideration on each count, however initially it is necessary to summarise some of the background to make sense of the context in which the offences were committed.
The involvement of Mr Croke in this series of criminal activities had its origin on the 11th August 2011, when police stopped Mr Sean Carolan at the Hilton Hotel foyer and searched a bag in his possession, finding AU$702,000 in cash. Not unreasonably they suspected the cash to be the proceeds of unlawful activity. Mr Carolan told police that he had been given the suitcase by Owen Hanson, who he referred to as "Junior Hanson", for safe keeping and/or a business investment.
Unsurprisingly, the police did not immediately find this explanation convincing. Shortly thereafter they became, in general terms, aware of intelligence suggesting that "Junior" Hanson was under investigation in the USA for involvement in criminal activity. As we now know, Mr Owen Hanson was indeed involved in significant criminal activity, including in the importation and supply of drugs into Australia.
The money in the suitcase was part of the proceeds of the sale of illicit drugs in Australia. Hanson had indeed given the money to Carolan, but to avoid the money being stolen by another criminal who was supposed to be laundering a substantial amount of the proceeds of drug sales in Australia, through the Crown Casino.
Hanson was keen to have the seized money returned to him. He was introduced by a friend to Craig Haeusler, a person with criminal convictions relating to drug supply. Mr Haeusler in turn recommended that Hanson seek advice from his friend, Michael Croke, who was a lawyer with a practice in Sydney.
The next day later Hanson, Haeusler and Croke met personally, to discuss how the money seized might be returned. Hanson told this offender that the money was the proceeds of illegal gambling. The offender commented "we will have to come up with a better story than that", in reference to what would be required to overcome the suspicion of unlawful activity being attached to the cash.
Mr Croke said that to be successful in having the money returned they would require a legitimate source of the funds in Australia. Several weeks later Hanson returned to the USA and did not return except ultimately, while in custody and giving evidence for the prosecution.
Much of the information about face to face conversations or telephone conversations with Croke comes from the evidence of Hanson. Even allowing for a warning to myself to assess his evidence with care, both because he was a co-offender and was expecting some benefit from his cooperation with the prosecution, Hanson's evidence was compelling and corroborated by other evidence. It was challenged as to some detail, but never successfully so.
The first act taken by Mr Croke was to send a letter directed to NSW police on the 20th October 2011, demanding the return of the funds to his trust account, on behalf of his client Carolan.
After that first meeting, numerous conversations between the offender and his co offenders occurred. For much of the time Haeusler was the communication conduit between Hanson and Croke. Many of those conversations were the subject of lawful telephone intercept recording, which were played during the course of the trial.
Over time a story was fabricated. In trying to invent a legitimate Australian source for the funds, consideration was given by the group to a person known to Haussler who lived in Fiji being nominated, but that idea was soon abandoned as unviable.
In due course Andrew McManus was recruited by Haeusler to join the criminal enterprise by claiming that he was the Australian source of the cash. McManus was known to Croke, as they had been in business together many years prior. Croke spoke to McManus and approved of his inclusion. Hanson was largely kept up to date with the developments in the story by Haussler, via telephone conversations, many of which were the subject of surveillance.
Thereafter the story evolved, over many meetings and conversations. As each part of the story evolved, Haeusler and Croke would discuss the evolution and Croke would advise from a legal point of view what might be helpful. Haeusler would keep Hanson informed.
Croke's suggestions at this stage included finding a source for the cash in Australia; discussing with McManus the story in general terms and encouraging him to participate (McManus's evidence); telling McManus to send him an email with a version of the story in it; drafting a statutory declaration for Hanson with a version to suit the story and suggesting documentary evidence to show a business relationship between Hanson and McManus.
Ultimately the co-conspirators, or members of the joint criminal enterprise, consisted of the offender, Hanson, Haeusler and McManus. This offender was actively involved and suggested a course of action to retrieve the funds seized by police. This involved coaching McManus before a police interview, and attending with him in the interview, as his legal representative.
Mr McManus was a very enthusiastic participant in the police interview, apparently assisted by his ingestion of cocaine immediately prior to it. He gave an entirely concocted story about being in a legitimate business relationship with Hanson. He claimed that he had provided the $700,000 in cash some months prior and it was the legitimate proceeds of a concert in Perth. He owed the money to Hanson, he said, as Hanson had loaned him that amount in America, to secure an artist for another rock concert.
Croke assisted during the interview where necessary with explanations. However, McManus was so enthusiastic that he got carried away and adlibbed, including Haeusler as a character in the concocted story.
As a result, it was then necessary for Haeusler to be interviewed by police to confirm the version of events that McManus had made up. Croke also attended with Haeusler as his solicitor.
Next, this offender prepared a false statutory declaration to be sworn by Hanson to support the proposition that Carolan had the money as part of a legitimate business agreement, and later suggested the preparation of a false documentation to support the proposition that McManus and Hanson were involved in legitimate business activity involving the rock band ZZ Top.
Hanson signed the statutory declaration and instructed his accountant to prepare a document purporting to be a copy of a tax return. Croke gave both documents to police to support both ends of the fictitious story that had evolved. Police then interviewed Hanson, who kept largely to the script prepared by the group.
I must observe that even had police not been listening to the evolution of the story via telephone surveillance, it seems objectively unlikely that the story that eventuated could be considered to be plausible, so outlandish were the claims.
Finally, when police still did not return the money, the offender filed process in the Supreme Court of NSW, seeking the return of the funds, plus interest, on behalf of Mr Carolan. Croke instructed counsel to appear and argue that case. Hanson paid for this representation. In November 2014 the Supreme Court dismissed the proceedings. The 3 year effort of the offender and his co-conspirators had failed. No money was returned.
In summary, from the date of the first meeting in August 2011 until November 2014, Mr Croke, together with his co offenders, involved himself in the process of inventing a story to avoid the money seized being forfeited to the Crown, as being either unlawfully obtained or the proceeds of crime. He intended the $702,000 confiscated be paid into his own trust account and ultimately distributed between himself and his co-offenders. All the participants had an expectation of a financial reward, the details of which are unknown.
The offenders were unaware that from late 2011 police were able to lawfully intercept telephone calls involving Craig Haeusler, and also had installed surveillance devices in his home. Much of the information relied upon resulted from lawful electronic surveillance.
The offender was charged in relation to the activity in September 2015, together with McManus, and Haeusler. Mr McManus pleaded guilty in the early stages of the proceedings, and Mr Haeusler also pleaded guilty on the first day of an earlier trial which was abandoned in January 2020. Both McManus and Hanson gave evidence for the Crown. Hanson, who is in custody in the USA on other matters, has not yet been charged with his involvement in the present offences.
Mr Croke was found guilty by a jury on 20 April 2020. He has been in custody awaiting sentence since 5 May 2020.
The charges of which he was convicted and a short description of the steps he took in the process are as follows:

Counts 1 and 2

This event relates to the police interview of Andrew McManus on the 4th April 2012. As background, McManus complained to Haussler that he was in need of a loan, due to business and personal difficulties. Haussler, knowing that Croke had told Hanson that an explanation would have to be invented as to a legitimate Australian source of the funds, suggested to Croke that MacManus would be a good candidate. After Mr McManus agreed in principle, this offender met both of them and agreed to McManus's inclusion. An email from Croke to McManus set out some basic requirements for the story. In response McManus sent to Croke, an email containing a version of the story, including a statement that he would like the cash back quickly, as he needed to borrow it again.
Croke accompanied McManus to the police interview and occasionally interceded in explaining issues. Mr McManus performed his role enthusiastically, making much of the detail up as he went along.
Notwithstanding the story given by Mr McManus is and was objectively farfetched, it was a version pursued with vigour by both McManus and Croke. In that pursuit Mr Croke was seeking, in conjunction with others to avoid the proceeds of crime being properly forfeited to the crown, (Count 1) and instead divided amongst his co-conspirators.
At the conclusion of the interview either the accused or McManus gave to Detective Sergeant Findley a printout of the email referred to above (exhibit 232A in the trial). Although it is not possible to find which of the offenders physically handed the document to police, it is not a matter that affects an assessment of criminality of this offender. The email was prepared in McManus's words, on Croke's suggestion. This offender had discussed the need for such a letter in his conversations with Haeusler about the possibility of using McManus, well prior to the interview. The transcripts of the intercepted conversations between Haeusler and Croke on the 3 and 5 March 2012 show that on several occasions the prospect of using McManus was discussed, even before he agreed to be involved. This offender indicated that a letter, in the form that was finally presented as exhibit 232A would be required. After the email exchange occurred between McManus and Croke, the result, that is exhibit 232A, was given to police. The preparation of this document was driven by this offender.
Croke and McManus were members of the joint criminal enterprise with the same aim. It was not challenged and apparently is not in dispute in the sentence proceedings that one of them handed over the email. Whether it was the offender or McManus is irrelevant. They were both together in the interview and together when to email was handed over. The handing over of the email was intended to support the false story given by McManus. It is not possible and unnecessary to decide who did it, but the act was done with the clear intention of obtaining advantage for the group.

Count 3

In December 2011, the offender drafted a form of statutory declaration which he arranged be sent to Hanson for affirmation and return. This occurred. That statutory declaration contained part of the false story as concocted by the offenders as to why Hanson had given the $702,000 to Carolan. On 15 April 2012 the offender gave it to police in contemplation of police interviewing Hanson. That interview took place on the 4 July 2012. When the offender gave the document to police he knew the document contained false or misleading information and he gave it to police in an attempt to support the joint criminal enterprise by himself and others to have the $702,000 paid into his trust account.
From the first meeting with Hanson, Croke was aware the funds were from an illegal source as he was told it was from "illegal gambling". During conversations with Haeusler at Heausler's home on the 5th March 2012 this offender acknowledged that Hanson was involved in serious criminal activity, referring to "Mexicans" or a Mexican cartel. He was aware at this time that Hanson had connections to a major international criminal syndicate with connections to drug suppliers. It is of little consequence if he actually knew that the money was the direct result of a particular supply of cocaine to Australia or some other criminal enterprise. The offender knew that at least the money was illicitly obtained and that Mr Carolan was holding it for safekeeping.

Count 4

This event relates to the offender giving, on 14 May 2012, a copy of a false 2011 tax return in the name of Owen Hanson to police. The importance of the false tax return is that it showed a business relationship apparently existing between McManus and Hanson which was the subject of proper reporting to the USA tax authorities. The tax return contained fictitious information. It was never filed, nor intended to be. The offender knew the document was false and contained misleading information, because he knew that the story about investment in the ZZ Top tour was untrue. During a telephone conversation with Hanson, Croke suggested that some form of documentary proof of his involvement in the business with McManus might be helpful to the joint criminal enterprise. The false tax return, prepared by Hanson's accountant appeared some time later. Mr Croke gave it to police to support the false story thereby assist in the attempt to have the $700,000 returned for the financial benefit of him and others.

Count 5

This event relates to the accused swearing an affidavit dated 20 November 2013, and relying on that affidavit in Supreme Court proceedings, heard 28 May 2014, in which the return of the $702,000 was sought. The affidavit annexed the McManus email dated 14 March 2012 which the offender knew contained false and misleading information. The offender used his position and knowledge as a solicitor to commence proceedings, notionally on behalf of Sean Carolan and brief counsel to argue those proceedings in court. The offender and Mr Carolan both knew he was not lawfully entitled to the money. The Supreme Court proceedings were dismissed in November 2014. The fact that the proceedings were unsuccessful is irrelevant to the finding that the action of the offender was done with the intention of convincing the court, by lies and dishonest documents, to make an order returning funds to Carolan, via Croke's trust account. It was clearly the intention of the offender to then distribute the funds in a way that might then have been agreed.

Count 6

This offence relates to the entirety of the offender's involvement in the attempt to divert police from investigating and pursuing the source of the $702,000 seized from Mr Carolan on the 11th August 2011. The preparation for this offence commenced from when he first met Hanson in August 2011, and the involvement in criminal activity from at least the 9th April 2012.
After the interview between police and McManus on the 4th of April 2012, the offender telephoned Haeusler and advised him that McManus "had involved you". On the 9th April 2012 the offender and Haeusler spoke on the telephone and coordinated new details to be relayed to police. The offender referred in that call to "one part of it that concerns me to do specifically with Owen" but then indicated that he did not want talk about it on the telephone.
The Haeusler interview with police occurred on the 11th April 2012. This offender accompanied him. Other than that personal and legal support to his co offenders, Croke's involvement consisted of many phone calls and personal visits with co-conspirators, advice, on legal issues and preparation of documents. Arrangements were made, on this offender's advice for Hanson to have recordings of Haeusler's and McManus's interviews before he spoke to police, in order to keep their stories consistent. There is some overlap with the activities of the offender's involvement in counts 1-5 and count 6.
Croke was well aware that Hanson was involved not just in some form of illegal gambling, but serous international criminal activity. The totality of his conversations with Haeusler supports this finding. In particular the conversation with Haeusler on the 5th March 2012. (p 14 of the transcript) Haeusler said to Croke, when referring to Carolan "he would be smart enough to know that you …..never, never … you don't want to fuck with the Mexicans" (in reference to Hanson's involvement with the Mexican cartel) Croke replied " I wouldn't be ….. that would be horrible" indicating without doubt that this offender was aware as early as March 2012 that Hanson was a significant player in international criminal activity. The offender was aware that Hanson was involved not just in some form of illegal gambling but in in serious international criminal activity and was himself part of a criminal group that acted with violence and complete disregard for laws in Australia and other parts of the World.
Mr Croke's involvement was to act and advise the group, including Hanson directly in such a way as to further their ends in this particular illegal venture. As part of the Criminal group he attempted to obtain material benefit for the group as a whole.
It was submitted that the offender's involvement as whole in the enterprise was not as significant as for example Haussler's, or even Hanson's, who was the original source of the money. I disagree. The offender gave direction and advice to guide and support the false story that was created. The legal advice he gave was parroted by Haussler (sometimes with his own embellishments) in order to keep the other members of the criminal enterprise engaged in the same message, and to placate them when delay caused concern.
Without the offender's presumed legal knowledge, the story would have been even less credible than it became. The fact the Haussler sounded off to Carolan and on one occasion Hanson that Croke was hard to contact, and perhaps ought be sacked was nothing more than Haussler big noting himself to others.
As Croke himself stated to Haussler, the Supreme Court proceedings required the money to be paid (however much was ordered) to his own trust account, whether Carolan was still his client or not. Croke was unconcerned that the person named as the claimant, notionally his client, Sean Carolan, was unhappy and wanted to sack him. Mr Croke was scathing of Carolan's place in the proceedings and dismissive of his ability to retrieve the funds without him. As observed, this position did not have to be tested.
Where the charges relate to an intention to pervert the course of justice the offender's personal involvement was to obstruct the investigation of criminal activity by police and later the Crown, thus subverting the administration of the law.
The forfeiture of the $702,000 was contemplated from the time the money was seized by police and the offender at all stages planned and personally participated in obstructing that proper process. After police had retained the money for a time beyond which a particular summary charge could be laid (against Carolan), this offender sought to bolster the story by trying to show it was not the proceeds of crime, by inserting McManus into the story.
All of the action was to avoid proper forfeiture of proceeds of crime. Mr Croke was knowledgeable in the areas of law he was seeking to avoid, and planned the fabrication of a story with supporting documents that he intended would avoid the usual and proper operation of that law. It is irrelevant that the group was ultimately unsuccessful in their endeavour.
Where the charges relate to an intention to obtain financial advantage, there is evidence before the court that initially, prior to the matters escalating to the point where Supreme Court proceedings were instituted, Croke had an expectation of being rewarded the sum of $50,000 for his involvement. However, after that there is some evidence that Hanson at least believed that Croke would seek more than that, up to according to his evidence $100,000. Hanson was in addition required to pay counsel for the Supreme Court proceedings, Mr Jones, separately for his involvement. From time to time there was discussion about the rewards each was expecting.
At all times however, Croke had a stated intention, if successful in the Supreme Court to have the funds (plus interest if ordered) into his trust account for distribution as agreed or directed. The distribution was to be under his control.
As it turned out the money was not paid. The joint criminal enterprise was entirely unsuccessful, and it is not possible to make a finding on how funds might have been distributed. This is of little importance in assessing objective criminality. Mr Croke was going to have control of the funds. He was expected to divide it amongst the co-conspirators and all were expecting a cut. Mr Hanson was expecting the bulk of it. All were disappointed.

Objective seriousness

The steps taken by this offender on a whole were as described above. In general terms he workshopped with Hansen and Haussler, and later and McManus, over a period of 3 years a series of steps aimed at convincing police to return the money. Apart from directing and contributing to the invention of the story, including preparing and publishing documents, he demanded return of the money from police and placed himself on the record as acting for Carolan in Supreme Court proceedings. He supported both McManus and Haeusler in their police interviews, and advised and prepared documents to support Hanson's interview. The offender swore a false and misleading document for Supreme Court proceedings and commenced the proceedings knowing that the plaintiff, Carolan, was not entitled to the funds. He was essential to the conspiracy and his co-conspirators, who each had important, but different roles took his advice. His expertise was sought for that purpose. He was one of the principals, along with Haeusler and Hanson. Each had different but equally important roles.
Each step along the way was a separate offence, but the objective gravity, the offender's moral culpability and consequences for the community can be best assessed globally. As a whole I find the criminality to be high. The offending occurred over a period of nearly 3 years, and was planned in detail at each stage. The offender's involvement was necessary and without him the offending could not have occurred.
There was a prolonged attempt to hide the true position about the money, and then about associations of co offenders from police. The offender clearly had little regard for his reputation as an officer of the court, and the calm enthusiasm with which he approached the invention of the story at various stages demonstrates an arrogance that his needs, either personally or to impress his clients was a need above the requirements of honesty and regard to the operation of the administration justice in this state. His misuse of his experience and reputation as a solicitor to perpetuate the offending over such a long period must increase the objective seriousness of the behaviour as a whole. At each stage he was aware of the offences he was committing, yet he went ahead notwithstanding that knowledge. The offender's moral culpability is of a very high order.
I observe that Giles J in the case of R v Purtell (2001) 120 A Crim R 317 observed that "that the maximum penalty for the offence of perverting the course of justice, 14 years, recognises the importance of protecting the integrity of the criminal justice system, and therefore general deterrence is an important sentencing consideration."
General deterrence in the context of this decision means sending that message to all involved in the criminal justice system, including lawyers, that their assumed knowledge, privileged position, assumed trust and respect require correspondingly higher obligations to behave with honesty and respect to the system that provides them with employment and status.
A lawyer who works within the system commands respect, trust and frequently is well remunerated. They are given special access to the structures within the administration, such as to police and courts.
Lawyers have a position in the criminal justice system where they do, as part of their work come into contact with those who would seek to avoid the consequences of breaking the law. A lawyer who steps over that boundary themselves does so with open eyes as to the consequences.
Denunciation is an equally important sentencing consideration. While I accept that Mr Croke now feels his fall from grace keenly, because of the publicity this case has attracted, a consideration for the court still must be to denounce his conduct on behalf of the community.
As was observed by Simpson J in the case of R v Chapman (unrep, 21/5/98, NSWCCA) "Those concerned with the administration of the law must appreciate the importance of truthful evidence being given in judicial proceedings". Mr Croke was an officer of the court, a status given to him as a solicitor allowed to practice in the court, a privilege allowed to those of good character and reputation.
The Crown who pointed out the observations of Lee CJ in R v Pangallo (1991) 56 A Crim R 441… "solicitors as part of the legal profession are expected to conduct themselves towards clients with honesty ... that high standard of honesty is expected of them in their dealings with police, courts and other public authorities".
Defence submissions concede the fact of the offender's profession as an aggravating circumstance. The fact that the offender gave legal advice, seeking to involve others in the dishonest process (no matter how enthusiastic they were) simply underlines the importance of this offender to the entire project, and his disregard for his obligations as a solicitor admitted to practice. The totality of his offending represents a serious assault on the system of justice in this state.
In relation to the pervert the course of justice and criminal group offences it is an aggravating feature that the offences were committed with the objective of financial gain. The other offences contained the element of financial advantage, and this does not form a circumstance of aggravation. There are no other circumstances of aggravation as defined in s 22.

Mitigating and subjective matters

Mr Croke is 70 years of age. His background is as contained in the report by Dr Furst. Although the offender did not give evidence at any stage of the proceedings, much of his self-report is not in dispute. Throughout his life he has worked hard, and when he became qualified as a lawyer he built up an apparently successful practice.
Up until these offences he was a person of good character. I have received and read character references from many of his friends and family who give a glowing account of his contribution to their welfare. The letter from his partner of 40 years gives significant information as to his contribution as a friend to his many personal and business associates and family. I accept that up until his conviction he was thought of highly by many in the community, including other lawyers.
I accept that up until his involvement with the offences, which started in 2011, he was a person of unblemished character. However the offences were committed over an extended period and the leniency allowed for his prior good character will be diminished due to this consideration. It was because he was considered so highly in the community and because of his standing as a solicitor that this offence was able to be committed with such audacity.
Mr Croke's health is not good. He has been receiving treatment for many years for a range of medical conditions, including ulcerative colitis, type 2 diabetes and hypothyroidism. These conditions have been controlled by medication. He has in recent time been diagnosed with prostate cancer and surgery is recommended by his specialist. I am satisfied on the evidence provided by Dr Forster that suitable arrangements can be made for this surgery, by a specialist of his choice and recovery while he is in custody, at a time appropriate for his condition. However I accept his age, his other health conditions and the treatment required will be matters what will be more difficult to endure at least emotionally, while in custody. A condition such as his is difficult for all who suffer from it.
I accept that the offender is suffering from acute anxiety and high levels of stress. That is not I observe, unusual for an offender who is placed in custody for the first time and is awaiting sentence. It is of itself not a matter of great concern in the sentence process.
I am surprised that Dr Furst reports that Mr Croke was "shattered at his conviction and incarceration." Mr Croke a solicitor of many years' experience ought to have been more aware than the average person of the likelihood of a conviction once the matter got to trial. I observe that during many of the telephone intercepts, he expressed concern that his phone was "off" and that he did not want to discuss his illegal activity on the telephone for that reason. He was much more open in situations where he did not expect to be recorded. In these circumstances I find that he harboured a real consciousness of guilt with respect to the current offending, and his involvement with his criminal associates. In this circumstance I am doubtful that his surprise at his conviction is genuine, or if it is, it simply underlines his arrogant belief that he was above the law and would not be caught.
Mr Croke did not give evidence either during the trial or as part of the sentence proceedings, so his complaint of panic attacks and extreme anxiety will be considered with some circumspection. Justice health records throw doubt on his claim of unanswered calls.
However, I do accept that this change of circumstances for him, especially with his recently confirmed medical diagnosis will be difficult to adjust to. The timing of his medical diagnosis is a burden on him that I accept is likely to cause anxiety. I accept that there was a high media interest in the trial as it continued. It is hard to say whether that reporting concentrated on Mr Croke's involvement or on the involvement on more colourful characters. I accept there has been some public humiliation, but cannot find that it amounts to extra-curial punishment so egregious as to affect the sentence.
I accept that his loss of livelihood as a solicitor is a significant loss his future income earning capacity. It is a product of him no longer being able to take advantage of being a person of good character.
He has requested, probably properly at least initially that he be placed in a restricted custody classification. However I observe that such a classification does not mean that he is either alone nor isolated. He has access to library, and exercise facilities. He is not in the general population, but placed with others who seek that restricted protection. After the sentence has been imposed, a re-classification can occur. It will be up to him to give whatever input he believes necessary for this classification. This is not evidence of hardship in custody. I have no acceptable evidence that he is in danger from other inmates while in custody.
It is always the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. In the related bail proceedings, I was presented with a significant amount of information concerning the ability of Corrective Services to provide treatment, including if necessary surgery for his current presenting medical issues. There is no information in the present case that imprisonment will be a greater burden on the offender by reason of his state of health.
With respect to the current custodial circumstances as a result of the COVID requirements, it is the case that at present all prisoners suffer a degree of isolation as contact visits are not allowed. While I accept and support this course of action by correctives to keep the population in custody safe, it is the case that this imposes some hardship over and above normal conditions of custody. I cannot predict how long such a situation will occur, but is it a matter that requires some consideration in ameliorating the sentence to be imposed.
No doubt any one in Mr Croke's positon, awaiting sentence would be anxious, but I accept that he is finding the combination of incarceration, isolation and the medical diagnosis very stressful at present. The combination of his age, his general and mental health condition and current difficult circumstances and, his good prospects of rehabilitation will, combined support a modest finding of special circumstances in his favour.
Section 5 (1) of the Crimes (Sentencing and Procedure) Act requires sentences to use imprisonment as a last resort, on being satisfied that no other penalty is appropriate. Mr Dalton SC accepts that the s 5 threshold is crossed, but suggests that the length of it would allow the sentence to be served by an ICO, which was the penalty imposed on Mr McManus. In considering that submission I note Mr McManus pleaded guilty to doing an act with intent to pervert the course of justice (max 14 years) at an early time. His sentence was a 20 month ICO after allowing a 25% discount for an early plea, and a further 7.5% for providing assistance to police, including giving evidence in proceedings against Croke. Mr McManus's criminal record was limited, and historical. He gave evidence as required. His level of criminality and moral culpability less that this offender's he was not an organising principal in the entire operation as was Mr Croke. McManus was only involved in a portion of the entire project, albeit and important part of the story. It was this offender who coached and mentored McManus, with the enthusiastic assistance of Haussler. Mr McManus hoped to receive a loan of $200,000 for his part in the deception.
When referring to statics and reported cases, I observe that nearly all of the matters involving "pervert the court of justice" resulting in a non a full time custodial sentence were matters where pleas of guilty were entered at some stage. From the report by Dr Furst and references provided, Mr Croke still does not admit the offence. He cannot receive the benefit of remorse. This must colour to some extent his prospects of rehabilitation.
Counsel for Mr Croke, has referred to cases which bear some similarity, Hart v Attorney-General for New South Wales [2016] NSWCCA 71 and Einfeld v Regina [2010] NSWCCA 87. In Einfield's case, the former judge lied to a court relating to who was the driver of his car and pleaded guilty only when the evidence of his dishonesty became overwhelming. Perjury by a Justice of the Supreme Court is an egregious affront to the administration of justice. His involvement was in relation to this single event, compounded by his covering up of his original lies. His expected benefit, apart from a clear driver's license was mostly his own ego. He was Sentenced to 21 months full time custody, after an allowance of 12 ½ % for an early plea. I will take note of this decision while observing the lack of organisation and planning In Einfeld's which exists in the current case. Mr Hart, who like this offender was a solicitor, told lies to the court, and police in order to ensure that his clients obtained a particular listing in the Local Court system, which Mr Hart was of the opinion was advantageous for them. He was in effect Magistrate shopping and using dishonest means to do so. There was some but very modest financial incentive for him and some reputational advantage. He eventually pleaded guilty, and after an allowance of 10% for that plea was sentenced to 2 years 9 months head sentence. He pleaded to 5 counts of pervert the courts of justice with 5 similar counts on a Form 1. 3 clients were involved. Each of his offences was unrelated to the others. His modus operandi was unsophisticated and the planning limited compared to the degree of complexity involved in the present case.
Mr Hart instructed his clients to manufacture false information to place before courts to receive a better outcome, on some occasions to have his client's cases placed before a magistrate perceived to be more lenient than others. The result was one that was still within the discretion of any magistrate to give. On some other occasions he told clients to create letters containing false information to support their case to convince a magistrate to exercise their discretion leniently, because of this false information.
In contrast, Mr Croke personally manufactured false information and gave legal advice to his clients on how to subvert the legal and police investigation process in order to achieve a result which was totally at odds with an outcome that would have been available without dishonesty. His criminality is at a higher level than that of Mr Hart, but the Hart decision is a helpful guide which I will take into account.
I accept that Mr Croke has good prospects of rehabilitation. He is now 70 years of age. There is little prospect he will be in a position to offend in this way again. He has family and friends support. He shows no remorse, however the other considerations allow a finding of that he has little chance of re offending.

Sentence

The Crown has submitted that no sentence other than full time imprisonment is appropriate. The oft quoted second reading speech of The then Attorney-General, the Hon John Dowd MLA sets out the reasoning why offences as committed by this offender are so serious and require a significant consideration of general deterrence and strong condemnation in the sentence phase of the proceedings. He said (Legislative Assembly Hansard 17 May 1990 p 3691) "Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. Not only do offences concerning the administration of justice affect individuals, but the community as a whole has an interest in ensuring that justice is properly done."
The Court of Criminal Appeal has consistently held that offences against justice require strong deterrent sentences and must be severely punished whenever detected. This, like many cases is unique in terms of the breadth of the criminality of the offending, the times over which the offending occurred and the involvement of a large number of criminals in such a fabrication.
Mr Croke's involvement was pivotal. He is equally responsible for the offending as is Haeusler. His expertise was different to Haeusler's, but necessary for the enterprise to commence and continue.

Delay

Counsel suggests delay is a factor that ought result in some mitigation of the sentence. It is not suggested that the offender has suffered any detriment as a result of the 5 years elapsed since the charges were laid. Some of the delay was caused by the Crown seeking an adjournment to enable Mr Hanson to appear. The offender consented. Other delays were not the fault of the Crown, although they opposed adjournments, they were usually on the basis of availability of defence counsel. Mr Dalton SC suggests that the importance of delay is that is shows Mr Croke has not committed further offences in the 5 years, therefore supporting a finding of good prospects of rehabilitation. I have already made this finding. I do not think the past 5 years adds much. Delay is not a factor that assists him.
However I will commend the offender in giving instructions to his counsel and solicitors to be as cooperative as they were in assisting in technical issues during the trial, which was conducted in difficult circumstances, crossing the beginning and the height of concern about the COVID 19 pandemic in Sydney.
For part of the trial Mr Croke appeared via video link. His legal team were very helpful in arranging and trouble-shooting where necessary. His counsel asked for many adjournments due to jury concerns, and although I usually refused them, the applications were not time wasteful. Mr Croke deserves some credit for this cooperative approach by his legal team, which facilitated the course of justice, eventually. That credit will be reflected in the sentence imposed.

THE SENTENCE

Despite the well regarded background of the offender only a sentence of imprisonment will satisfy the requirement of denunciation and general deterrence and the requirement for punishment in the case. Indicative sentences Count 1 2 years and 6 months Count 2 12 months Count 3 18 months Count 4 18 months Count 5 4 years and 6 months Count 6 3 years and 6 months.
In coming to an aggregate sentence I have acknowledged that count 6 encompasses many of the acts in other changed matters, therefore the notional accumulation is slight. The offender is sentenced to an aggregate term of imprisonment of 5 years, 9 to commence on 5 May 2020 and expiring on 4 February 2026 with a non-parole period of 3 years, 9 months. The offender is first eligible for parole on 4 February 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2020

R v Croke

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