R v Johns [2010] VSCA 63

2 The applicant seeks leave to appeal against a sentence of 30 months' imprisonment, of which 27 months was to be suspended for a period of three years, which was imposed upon her when she pleaded guilty in the County Court to a presentment containing a count of attempting to pervert the course of justice.

3 The conviction arose from the applicant's relationship with one Shane Cotter. From time to time the applicant lived with Cotter but they frequently argued and separated. On 27 March 2006, the applicant obtained an intervention order against Cotter. The order did not prevent the pair cohabiting but restrained Cotter from assaulting or harassing the applicant.

4 A year later, Cotter assaulted the applicant and left the house in which he and the applicant were living. The police were called and the applicant was taken to hospital. Soon afterwards a fire broke out in the house. Cotter was charged with arson and assault of the applicant and with threatening Ms Laurie, a neighbour who saw Cotter assault the applicant.

5 The applicant made a statement to the police alleging that Cotter had assaulted her and threatened to trash or burn her house. A few weeks later, the applicant saw a solicitor who acted for Cotter and signed a document stating that she wished to retract the statement she had made to the police.

6 The police recorded telephone conversations between the applicant and Cotter, who was on remand in respect of the charges of assault, arson and making threats. In the course of the telephone conversations, Cotter suggested, and the applicant agreed, that the applicant would attempt to persuade Ms Laurie to withdraw the statement she had made to the police which implicated Cotter. The applicant subsequently telephoned Ms Laurie, saying, 'I know it's a lot to ask but

would you change your statement for Shane?' The applicant telephoned Ms Laurie on a further five or six occasions asking her to withdraw her statement. Eventually Ms Laurie agreed to do so. The applicant gave Ms Laurie instructions to go to a solicitor in Ballarat. Eventually the applicant met Ms Laurie and took her to the solicitor's office where she signed a statement headed, 'Statement of No Complaint'. Ms Laurie subsequently went to the police and revealed the applicant's efforts to persuade her not to give evidence against Cotter.

7 The applicant is 42 years old. She had a deprived upbringing. Her father died when she was aged eight years and she was placed in an institution as her mother was deemed unable to care for her. The applicant left the institution at the age of 13 years and gave birth to a child at the age of 15 years. Subsequently the applicant had three other children. The applicant suffered domestic violence at the hands of a partner other than Cotter.

8 The first ground of the application is that the sentencing judge erred in reducing the discount to which the applicant would have otherwise been entitled on account of her undertaking to give evidence against Cotter, on the basis of the sentencing judge's doubts as to the way in which the applicant could give her evidence, and the fact that her Honour could not unreservedly accept the applicant's undertaking. The applicant gave an undertaking to the court on oath that if Cotter was tried, she would give evidence against him in accordance with statements she had made to the police.

9 In the course of her sentencing remarks, the sentencing judge said:

Although you have denied it, I gained the impression that you are under the influence of Cotter and I have some doubts about the way in which you will give your evidence on his trial. However, weighing all these matters together, I have decided that you are entitled to a less severe sentence than I would otherwise impose because of your undertaking, but it will not as substantial a discount as would have been the case had I been able unreservedly to accept your undertaking.

10 An offender who undertakes to give evidence against a co-offender is ordinarily entitled to a substantial discount on being sentenced. The ends of justice are best served by encouraging such cooperation. Counsel for the applicant submitted that the sentencing judge erred in reducing the discount on the basis of a speculative prediction. He also drew attention to s.567(a)(1)(a) of the Crimes Act 1958 (Vic), which provides that the Director of Public Prosecutions may appeal against a sentence imposed upon a person who gives an undertaking to assist the authorities, when the Director considers that the undertaker has failed wholly or partly to fulfil the undertaking.

11 Counsel for the respondent answered that the sentencing judge's view was warranted by the applicant's changes in attitude and seeming dependence on Cotter. Counsel said that one of the circumstances which a sentencing judge ought to consider was the quality of the information which a person giving an undertaking is able to provide.

12 In my view there is a distinction between evaluating the assistance which an offender can give and assessing whether an undertaking to give assistance will be fulfilled. The former is a factor to be taken into account in determining an original sentence. See for example R v Johnson 2008 [VSCA] 133, [18] (Nettle JA); R v Cartwright (1989) 17 NSWLR 243, 252-3 (Hunt and Badgery-Parker JJ). The latter may found a later appeal by the Director.

13 In my view the existence of the safeguard of appeal by the Director rules out consideration of the likely performance of the undertaking in sentencing the person who has given it. Parliament has determined that the matter is to be judged with the benefit of hindsight. Accordingly I consider that the sentencing judge erred in taking into account a matter to the prejudice to the applicant which was strictly irrelevant.

14 The wisdom of the regime put in place by Parliament is illustrated by the consequences of this case. The applicant gave evidence at Cotter's trial. The sentencing judge has reported to this Court:

As is clear from my sentencing remarks, I was of the view that the applicant was acting under the influence of her co-accused at all relevant times including during her plea hearing and I had some doubts about the way in which she would give evidence on his trial. However since then, I have presided over the trial of the co-accused in which the applicant gave evidence and my fears were not realised. In my view the applicant did give evidence honestly, truthfully and to the best of her ability. If this honourable Court determines that the applicant should be re-sentenced, bearing in mind that I have not seen the grounds of appeal, then it is my respectful view that any prison sentence to be imposed ought to be wholly suspended.

15 By reducing the discount for cooperation, the sentencing judge imposed what she now sees to be an inappropriate sentence.

16 The second ground of the application is that the sentencing judge erred in finding that the applicant's offer to plead guilty was 'only a small indication' of remorse and there was 'nothing else in the material before me to show remorse'. Counsel for the applicant submitted that the sentencing judge apparently overlooked the applicant's offer of cooperation with the authorities as evidence of remorse.

17 The undertaking was not offered when the plea was first made, but only after an adjournment during which Cotter told the applicant that he had no objection to her giving evidence against him. In those circumstances I do not consider that her Honour erred in failing to find that a motive for the undertaking was remorse.

18 As I am of the opinion that the sentencing judge fell into error, the exercise of her Honour's discretion is to be reviewed.

19 The offence of attempting to pervert the course of justice is punishable by a maximum sentence of 25 years' imprisonment. The maximum sentence reflects the fact that the crime imperils the proper administration of the criminal law. General deterrence is usually given significant weight in sentencing those who commit this offence. I think that a sentence of two years' imprisonment would properly mark the gravity of the offence. The applicant was at some pains to persuade Ms Laurie not to give evidence against Cotter.

20 On the other hand, the applicant's plea of guilty, her unfortunate upbringing and Cotter's exploitation of his relationship with the applicant that gave rise to the offence, were mitigating factors of some weight. The applicant could also rely upon the fact that her only prior convictions were for traffic offences. She had reached

maturity with a good character. The sentencing judge said that she was satisfied that the chances of the applicant's rehabilitation were 'reasonably good'.

21 In the light of the applicant's personal circumstances, I would re-sentence the applicant to be imprisoned for a term of two years and suspend all that remains of the sentence for a period of two years. But for the plea of guilty, I would have re-sentenced the applicant to a term of three years' imprisonment.

1. The application for leave to appeal against sentence is granted.

2. The appeal is treated as instituted and heard instanter and allowed.

3. The sentence imposed in the Court below is set aside and in lieu thereof the appellant is sentenced as follows:

On the count of intentionally perverting the course of public justice, sentenced to two years' imprisonment. We direct that so much of that sentence as has not already been served be suspended for two years.

25 Pursuant to s 6AAA of Sentencing Act 1991 (Vic), the Court states that but for the plea of guilty, the sentence which would have been imposed is a sentence of three years' imprisonment. And we direct pursuant to s 6AAA(4),

that there be noted in the records of the Court what that sentence would have been.

26 It is declared that 17 days is taken to have been served under the sentence and there will be noted in the records of the Court the fact of the making of that declaration and its details.