R v PURTELL, Garry Michael [2001] NSWCCA 21 | Case summary

1 GILES JA: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence pronounced by Judge Gibson in the District Court at Albury on 24 July 2000. The respondent had entered a plea of guilty to a charge of doing an act with intent to pervert the course of justice contrary to section 319 of the Crimes Act 1900. Exercising the power in s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, his Honour did not proceed to conviction and made an order discharging the respondent on condition that he enter into a good behaviour bond for two years and the further condition that he make no contact with Glenys Purtell either directly or indirectly. The occasion for that latter condition will become apparent. 2 The respondent married Glenys Purtell in 1976. They separated in 1991. The respondent thereafter lived in a relationship with Pauline Keirghran and then in a relationship with Jennifer Scott. In January 1997 the respondent was charged with assault on Pauline Keirghran and malicious damage to her property. He defended the charges in the Local Court at Albury, but in October 1997 was found guilty. 3 In relation to sentence the respondent's legal representative then handed up to the learned magistrate three letters of reference. One of the letters purported to be from Glenys Purtell. It was in glowing terms, speaking of sixteen wonderful years spent together and an amicable parting of the ways and, in particular, described the respondent as a loving husband and father and a kind and gentle man. The respondent was fined and ordered to pay court costs. It must be concluded that the letter purporting to be from Glenys Purtell was material in producing a more lenient penalty than might otherwise have been imposed. 4 The letter purportedly from Glenys Purtell was a forgery. It was in the handwriting of Jennifer Scott, with whom the respondent was then in a relationship. She was much younger than the respondent, and he said in his evidence that "we sort of worked it out together". 5 Glenys Purtell became aware of the letter and the deception was revealed. Glenys Purtell said that she did not hold the sentiments expressed in the letter. Both the respondent and Jennifer Scott were then charged with perverting the course of justice. 6 Judge Gibson described the respondent's act of presenting a forged letter to the Local Court as stupid, and as something the respondent did not have to do because the respondent could have proved by legitimate means that he was a man of good character highly regarded in the community. Indeed he was a man of good character highly regarded in the community, being at the time the Deputy Mayor of the Albury Council and having an impressive record of community service in the local cricket and football clubs. He had begun his working life as a bricklayer, and had achieved responsible sales positions in companies selling soft drinks. His Honour surmised the respondent may have wished to suggest that Glenys Purtell was, in his Honour's words, "happy with the split that they had had together". He made no finding as to the explanation, such as it was, in the respondent's evidence, which from the printed words in the transcript was really less than an explanation and to the effect that he didn't appreciate the seriousness of what he was doing. 7 Although Judge Gibson said that interference with the processes of the law was regarded as a serious offence, he described the respondent's act as in the top class of stupidity but "towards of the bottom of the range in relation to seriousness of perverting the course of justice". He said that the offence normally attracted conviction and a custodial sentence. He said, however, that there was a difference between putting a document before a court in relation to guilt or innocence and putting a document before the court on a question of penalty, it seems regarding the latter as less serious than the former. He continued: "He is forty-four, he has got a situation where he is employed, his employer speaks highly of him, other people speak highly of him, and it seems to me that in the totality of the circumstances of this case justice can properly be done and the community can be made aware of the seriousness of these types of offences without putting a prisoner in custody and indeed, in my view, it is properly a case in which one would give him a conditional release and that is what I propose to do in relation to him". 8 We were informed that the Crown had told his Honour that the Crown did not object to a suspended custodial sentence. That is, before Judge Gibson the Crown it seems was content with less than a custodial sentence to be served by the respondent. In fact the sentence was much less than that. 9 The Crown submitted before us that the sentence pronounced by Judge Gibson was manifestly inadequate, and that his Honour fell into error in two particular respects. 10 First, it was submitted that his Honour misapprehended the significance of the forged letter to the sentencing in the Local Court. It was not a case of stupidity because the letter went only to what could have been proved by legitimate means. Of particular significance to the assault on Glenys Purtell was the respondent's domestic kindness and gentleness, of which Glenys Purtell was uniquely qualified to speak. The letter went beyond generalised evidence of good character and high regard in the community, and purportedly coming from someone with special knowledge could have been expected to be influential in presenting the assault as quite out of character. In my view this point is well taken. 11 Secondly, it was submitted that putting a document before a court on a question of penalty as distinct from in relation to guilt or innocence did not bring less seriousness to the offence, either generally or in this case. It was said that sentencing sometimes involved a degree of informality in providing materials such as letters attesting to character, and that the effective functioning of the criminal justice system called for honesty in the sentencing process in relation to such letters and for the protection of the integrity of the sentencing process just as much as when the issue was one of guilt or innocence. It was submitted that a deliberate attempt to affect a sentencing outcome was not to be regarded as of a low order of seriousness. In my view this point also is well taken. 12 The offence of perverting the course of justice carries a maximum sentence of imprisonment for fourteen years. This recognises the importance of protecting the integrity of the criminal justice system, and the offence has been described as striking at the heart of the judicial system (see R v Hakim, CCA, 5 September 1996, unreported; see also R v Taouk (1992) 65 A Crim R 387 at 392). Deterrence is an important consideration in this regard. The respondent must have intended to produce a lesser penalty in the Local Court, and surely succeeded in doing so. 13 In my opinion the sentencing discretion of Judge Gibson miscarried when, influenced by the misapprehension of the significance of the forged letter to the sentencing in the Local Court and giving undue significance to the fact that the letter was handed up in relation to sentence, his Honour failed to attribute sufficient seriousness to the respondent's offence and to mark the community concern for the integrity of the criminal justice system and the importance of deterrence. 14 Jennifer Scott also entered a plea of guilty to a charge of doing an act with intent to pervert the course of justice, in her case making as distinct from using the forged letter. She was sentenced concurrently with the respondent, and the sentence was the same save for the condition as to contacting Glenys Purtell. There is no appeal by the Crown against the sentence. The respondent submitted that consistency in sentencing told against variation of the respondent's sentence. However, Judge Gibson considered that Jennifer Scott had been "influenced somewhat" by her position with the respondent, and took particular account of her youth and future career prospects. As well, although his Honour did not refer to it, the respondent came to be sentenced (although Jennifer Scott did not) as a person with a prior conviction. The circumstances are not comparable, and I do not think that the respondent's submission precludes correction of what I regard as the manifest inadequacy of the sentence imposed on the respondent. 15 In my opinion the respondent's sentence should be varied. I do not exclude a custodial sentence as something which could have been pronounced by Judge Gibson, but given the attitude taken by the Crown before his Honour and the fact that this is a Crown appeal it would in my view not be appropriate in the present circumstances to consider a custodial sentence, or indeed anything more than that which the Crown sought in this Court. 16 The Crown sought that the importance of the offence in general and the seriousness of the respondent's offence in particular be marked by the recording of the conviction whilst leaving the bond to be of good behaviour in place. I do not say that that would have represented an adequate outcome before Judge Gibson, but given the way the matter was conducted before his Honour, the approach by the Crown to this appeal, and the fact that it is a Crown appeal, it seems to me that we should not do more. 17 In my opinion the appeal should be allowed, the order made by Judge Gibson should be set aside, and in lieu thereof the respondent should be convicted and it should be ordered that he enter into a good behaviour bond for a period of two years together with the additional condition in relation to contacting Glenys Purtell. 18 HULME J: The order made by Judge Gibson was a wholly inadequate way of dealing with the respondent's criminality. Indeed, in my view, the approach taken by the Crown at first instance was inadequate in that regard. It is to be inferred he benefited by his perversion of the course of justice, and neither the order made by Judge Gibson nor that indeed as originally sought by the Crown would have in any way deprived him of the benefits he received by his dishonest conduct. 19 In my view it could be an extremely rare case of which this is not one that the penalty imposed for the respondent's offence should be less than one which hurt significantly. However, in light of the way in which the Crown approached the matter at first instance it is not appropriate that this Court do more than has been asked of it by the Crown in this case in the appeal. For those reasons and not because I think the ultimate result is correct, I agree with the orders proposed. 20 BELL J: I agree with the orders proposed by Giles JA for the reasons which his Honour gives.

R v PURTELL, Garry Michael

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