R v Waskin

Court of Criminal Appeal (NSW)|2003-02-17|Before: Giles JA, Simpson J, Smart AJ

CITATION : R v Waskin [2003] NSWCCA 96 HEARING DATE(S) : 3 February, 17 February 2003 JUDGMENT DATE : 9 April 2003

JUDGMENT OF : Giles JA at 1; Simpson J at 2; Smart AJ at 46 DECISION : (i) appeal against conviction dismissed; (ii) Crown appeal against sentence allowed, sentence quashed; (iii) in lieu thereof the appllant sentenced to imprisonment for a fixed term of eighteen months to be served by way of periodic detention.

CATCHWORDS : appeal against conviction - Crown appeal against inadequacy of sentence - intending to induce potential witness to give false evidence in a judicial proceeding - periodic detention Crimes Act 1900 ss 315, 323, 324, 556(a) LEGISLATION CITED : Listening Devices Act 1984 Crimes (Sentencing Procedure) Act 1999 s66 The Queen v M (1994) 181 CLR 487 Kingswell v The Queen (1985) 159 CLR 264 R v Lee, unreported, NSWCCA, 6 December 1994 CASES CITED : R v Zreika[2000] NSWCCA 75 R v Gian [2001] NSWCCA 276 R v Rogerson (1992) 65 A Crim R 530 R v Karageorge (1998) 103 A Crim R 157 PARTIES : Crown - Respondent Mamdouh Waskin - Appellant FILE NUMBER(S) : CCA 60007/03 COUNSEL : DML Woodburne - Crown M King - Appellant SOLICITORS : SE O'Connor - Crown Dennis & Company - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1088 FILE NUMBER(S) : LOWER COURT Viney DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60445/02; 60007/03

GILES JA SIMPSON J SMART AJ

9 April 2003 REGINA v Mamdouh WASKIN Judgment 1 GILES JA: I agree with Simpson J. 2 SIMPSON J: On 5 August 2002 the appellant was arraigned in the District Court on an indictment which contained two alternative charges. The first was laid under s323(a) of the Crimes Act 1900, alleging that, between 16 and 26 August 2000, he had suggested to Ms Rebecca Nash that she give certain false information to police with intent to induce Ms Nash, a person to be called as a witness in judicial proceedings, to give false evidence in those proceedings. The alternative charge, laid under s315 of the Crimes Act, alleged that, between the same dates, the appellant did an act suggesting to Ms Nash that she give false information to police with intent thereby to hinder the investigation of a serious indictable offence committed by another person. 3 The appellant entered a plea of not guilty to each charge and a trial proceeded. At the conclusion of the Crown case, on 8 August 2002, at the direction of the trial judge, the jury returned a verdict of not guilty on the alternative charge. The reason for this concerned the manner in which s315 is worded. The section creates an offence of acting with the intention of hindering the investigation of a serious indictable offence committed by another person; that is, a person other than the person accused under s315. The essence of the Crown case against the appellant was that he had acted with the intention of hindering the investigation of a serious indictable offence (allegedly) committed by himself. The evidence that had been adduced in the Crown case was, accordingly, not capable of sustaining a conviction under s315. 4 The following day, the jury returned a verdict of guilty on the principal charge. On 5 September 2002 a penalty consisting of a $2,000 fine was imposed upon the appellant. 5 The appellant appeals against the conviction. The Crown appeals against what it asserts to be the inadequacy of the penalty imposed.

facts 6 The factual basis upon which the Crown proceeded was not in issue and may therefore be stated succinctly. 7 The appellant was a pharmacist, the owner of a pharmacy in St Clair. He employed a young woman called Rebecca Nash, and had done so for some years. The appellant was in the habit of supplying large quantities of the drug sudafed at inflated prices to a Shane Zerafa. Ms Nash was on at least two occasions recruited to deliver the drug to Zerafa. 8 Police began to investigate the supplies of sudafed. Eventually, on 16 August 2000, the appellant was charged by police, initially with manufacture of amphetamines, a charge for which a charge of conspiracy to supply such drugs was later substituted. (Ultimately, the appellant was discharged at committal on this charge.) As a result of the drug charge the appellant placed some pressure on Ms Nash, who was then 22 years of age, to mislead investigating police as to the nature of the material that she had delivered to Zerafa. He suggested that Ms Nash might tell police that the packages she delivered to Zerafa contained video tapes, or that she was borrowing a charger or electrical wires. Conversations to this effect took place on three occasions, 17, 18 and 25 August. The last of these was recorded by a listening device, the subject of a warrant issued under the Listening Devices Act 1984. The transcript of the recording was in evidence. Its contents were not disputed. 9 In an interview with police which took place on 25 August 2000, the appellant agreed that, on 17 August, he had told Ms Nash, in the event that police indicated that they had video footage of her delivering something to Zerafa, to say that she had been borrowing a charger or electrical wires; and that, during the course of that afternoon, "a few times" he had told her to remember what he had said; that the following morning, he told her that, if police had video tape of two deliveries by her to Zerafa, she could not say that she was borrowing electrical wiring twice, but that she should say that she was lending Zerafa Sega video games. He also agreed that he knew Ms Nash was a potential witness in the drug charge against him. However, some caution needs to be exercised in relation to this latter concession. The transcript generally suggests that the appellant had some difficulties with the English language. This is capable of raising a doubt about the extent to which his acknowledgment that he "was aware" of the likelihood that Ms Nash would be a witness evidences a true and fully comprehended concession. For example, having made the concession, the appellant was asked why he was "aware" of that; he replied by asking: "Why am I worry you mean?" 10 Nevertheless, the interviewer persisted and the appellant again agreed that Ms Nash was a potential witness in the drug charge. Indeed, a little later, when asked why he would make any suggestion to Ms Nash concerning what she would say if spoken to by police, he answered in these terms: "Because I knew she is witness. I don't push her to, to, to lie." (Q315) 11 The appellant gave no evidence in the trial. He accepted the Crown case as presented, and did not resile from the concessions he had made when interviewed. In effect, he accepted that he had suggested to Ms Nash that she give false information to police. He maintained that concession on the appeal.

the appeal against conviction 12 The sole ground of the appeal was that the verdict of the jury on the primary charge was not reasonably open to it: The Queen v M (1994) 181 CLR 487. 13 Only three matters were advanced in support of the ground of appeal. The first may be disposed of quickly. Complaint was made that evidence was before the jury that the appellant had been charged with the drug offence, and this was (unduly) prejudicial. It was readily conceded that, having regard to the nature of the charge before the jury, such evidence was inevitable and necessary. It was further conceded that appropriate directions had been given to the jury and, indeed, that the jury was told that, by reason of the appellant's discharge at committal, he was innocent of that charge. Nevertheless, the submission was made that the prejudice created by the jury's knowledge of the existence of the drug charge could not be removed, and must have tainted the jury's deliberations on the charge under s323. Implicit in the submission was an argument that the prejudice so alleged was incurable, and affected the reasonableness of the verdict. 14 I would reject the argument. As was accepted, it was inevitable and necessary that the jury be made aware that the appellant had been charged, and of the nature of the charge. That was essential to the Crown case under s323. It was not suggested that any error infected the trial process in this respect, merely that the fact that that piece of evidence was before the jury was "prejudicial". There is no substance in the submission. 15 The second leg of the argument concerned the necessary element of the appellant's intention in suggesting that Ms Nash give false information. The charge as formulated required proof that the appellant's intention was to induce Ms Nash (as a person to be called as a witness in judicial proceedings) to give false evidence in those proceedings. It was submitted that the evidence in the Crown case was "more consistent" with an intention on the part of the appellant to ensure that Ms Nash gave no information to police, or, if necessary, gave false information to them with the intention of hindering the police investigation (into the drug charge), but that the evidence fell short of establishing an intention on the part of the appellant to induce Ms Nash to give false evidence in judicial proceedings. Save for the peculiarities of the wording of s315 (requiring that the serious indictable offence needing investigation be one allegedly committed by another person, that is, a person other than the accused) the evidence would have been capable of sustaining a charge under that section, but did not extend to establishing the relevant intention for a charge under s 323(a). 16 It seems to me that this submission unduly quarantines the two sections under which the appellant was originally charged. A person may well suggest that another give false information, with the intention of hindering an investigation (an offence against s315, provided that the investigation is into the activities of a person other than the person accused) and also (or alternatively) with the intention, if that person is to be called as a witness, to induce that person to give false evidence. The giving of false information to police may be a first step on the way to giving false evidence. Further, it is a mistake to assume that the person to whom the suggestion is made is necessarily to be a witness called by the prosecution. The offence is also committed where the intention is to induce the person to give false evidence as a defence witness. Certainly, the evidence was capable of establishing that the appellant sought to influence Ms Nash to give false information to police with the intention of hindering the investigation into his own activities. The fact that the evidence is capable of establishing that circumstance - which does not constitute an offence - does not mean that it is not also capable of establishing that he so acted with the intention of inducing Ms Nash to give false evidence in any judicial proceedings which followed. 17 In oral submissions it was further argued that there was no evidence that the appellant knew that Ms Nash was a person to be called as a witness in judicial proceedings and that, in fact, he perceived her more in the role of a co-accused who had been involved in delivering sudafed to Zerafa. That argument is disposed of by the passages to which I have already referred. 18 I would reject all arguments and dismiss the appeal against conviction.

the Crown appeal against sentence 19 It is necessary to restate certain material facts and circumstances. The section under which the appellant (as I shall continue to refer to him, although he is, of course, the respondent to the Crown appeal) was convicted was s323(a) of the Crimes Act. That section explicitly fixes a maximum penalty of imprisonment for seven years. By s324 the penalty for an offence against (inter alia) s323 is increased to imprisonment for 14 years, where the offence is committed with the intention of procuring the conviction or acquittal of any person of any serious indictable offence. There was no question but that the drug charge the appellant faced was, for the purposes of s324, a serious indictable offence. Thus, if the appellant were shown to have committed the offence with the intention of procuring his acquittal on that charge, he could have been liable to the greater penalty. 20 In submissions in support of the Crown appeal, counsel for the Crown argued that the greater penalty, (as provided by s324) is and was applicable. This, it was put, is because the irresistible inference is that the appellant committed the offence of which he was convicted with the intention of procuring his acquittal on the drug charge.

In my opinion the last proposition is correct. It was open to the Crown, at the outset, to have charged the appellant with the aggravated form of the offence, and to have sought punishment accordingly. 21 Nevertheless, in my opinion, the Crown argument should be rejected. The indictment specified a charge under s323(a). There was no suggestion in the charge as framed in the indictment that the Crown intended to rely upon the aggravating circumstance provided for by s324. Nor was this put to the jury in opening by the Crown; in final address by the Crown; nor in the directions given to the jury by the trial judge. Indeed, the Crown's legal representative who appeared at the sentencing proceedings explicitly informed the judge that the maximum penalty for the offence was imprisonment for seven years. S324 appears to have been raised for the first time in the submissions in this court. 22 Analogous issues have arisen in previous cases: see, for example, Kingswell v The Queen (1985) 159 CLR 264; R v Lee, unreported, NSWCCA, 6 December 1994. In the latter case the position was authoritatively stated by Gleeson CJ, with whom Powell JA and Smart J agreed, in the following terms: "In conformity with the rule of practice enunciated in R v Bright [[1916] 2 KB 441], and explained by Gibbs CJ and Wilson and Dawson JJ in Kingswell v The Queen , and The Queen v Meaton [(1986) 160 CLR 359], if the prosecuting authorities had intended to submit to the sentencing judge, following conviction, that the maximum penalty to which the appellant was liable was life imprisonment, they should have charged the circumstance of aggravation … in the indictment and the jury's verdict should have been taken on the question whether the circumstance of aggravation existed." (p29) 23 Earlier, his Honour had said: "It is a rule of practice that a circumstance of aggravation which affects the maximum penalty for which an accused person is liable should be charged in the indictment. This is sometimes done by framing alternative charges, one including the circumstance of aggravation, and the other omitting it, and taking a verdict of the jury accordingly. An alternative procedure suggested in Meaton is that there could be a single count including the circumstance of allegation (sic - aggravation), the jury being directed that it would be open to them, in appropriate circumstances, to find the accused guilty of the charge without the circumstance of aggravation." (pp28-29) 24 In Lee, it was further held that failure to comply with the rule of practice will not necessarily result in the quashing of a sentence imposed on the basis of the maximum sentence applicable to the aggravated offence, but this is immaterial to present purposes. Here the Crown seeks, on a Crown appeal, a ruling that, at the time of sentencing, the maximum applicable penalty was the greater penalty, and, further, to have the appellant re-sentenced on that basis. 25 I have no difficulty in rejecting this argument. The decision in Lee makes it perfectly clear that the time for the prosecution to position itself to have the appellant sentenced on the more serious basis is long since past. The time for the prosecution to take that stance was at the time of presenting the indictment against the appellant. Thereafter, everything the prosecution did was predicated upon the basis of the offence without the circumstance of aggravation and in which the lesser penalty applied. I would proceed on the basis that the maximum penalty applicable is that provided by s323, that is, a maximum penalty of imprisonment for seven years. 26 Even so, it was contended on behalf of the Crown, the penalty was manifestly inadequate. It was submitted that the sentencing judge gave inadequate consideration to the serious nature of the offence, and particularly to the need to give adequate weight to the principle of deterrence. It was further submitted that the sentencing judge attributed undue weight to the subjective circumstances at the expense of the objective gravity of the crime. In particular, it was submitted that the judge gave disproportionate weight to the discharge of the appellant on the drug charge. Finally, it was submitted that, even if no explicit error can be identified, the sentence itself, being manifestly inadequate, is demonstrative of error. 27 A number of decisions of this and other courts have emphasised the importance of the imposition of deterrent penalties in offences concerning the administration of justice: see, for example, R v Zreika [2000] NSWCCA 75 at [33]; R v Giang [2001] NSWCCA 276 at [21] - [26]. This is such an offence. 28 Of the principle there can be no doubt, and this was a relatively serious instance of such an offence. It took place over a number of days. It was directed to a young person, in the employ of the appellant, who no doubt feared for her livelihood. It included suggestions that she might find herself defending a charge as a result of her own participation, even though that was plainly at the instigation of the appellant. The objective gravity of the offence did, indeed, in my view, call for a more substantial penalty than was imposed. 29 It remains to be considered whether the subjective circumstances were such as to justify departure from that prima facie position. 30 The subjective circumstances were persuasive. The appellant did not himself give evidence on sentence. Nor had he given any evidence in the trial. In the sentencing proceedings he called two witnesses to attest to his character. One of these witnesses, a solicitor, described him as: "A very honest man, a very hardworking man, a man I respect very much." 31 To the same effect was evidence given by a close friend of the appellant, a travel agent. In addition, a number of written testimonials were placed before the sentencing judge. The judge accepted this evidence and noted that the appellant had worked hard as a pharmacist for over 27 years for six days a week or more. He was 51 years of age at the time of the offences. He had previously been charged with assault and indecent assault, both in 1983, and in respect of which he had been dealt with under s556A of the Crimes Act, with no conviction recorded. The sentencing judge accordingly treated him, correctly, as a person of prior good character. 32 In order to support the submission that the sentencing judge gave undue weight to the subjective circumstances, the Crown in its written submissions, characterised the approach taken by the sentencing judge thus: "His Honour … seems to have treated the respondent as almost a saint and a martyr. Rather than treating him as a hard working professional who ran a moderately successful business his Honour seems to have held the view that he struggled against almost overwhelming odds and therefore deserved special consideration." 33 In my opinion this is a quite unfair and exaggerated characterisation of the approach the sentencing judge took. The judge dealt with the subjective matters economically and fairly. What he said was: " Subjectively, I have already referred to the prior good character, industry and high esteem in which Mr Waskin is held by people who have known him for many years. He has been working hard as a pharmacist for over twenty-seven years, six days a week and more. He does not appear to have 'trappings of wealth' to any degree. … Mr Waskin has overcome the difficulties that all migrants face, coming from alien cultures, learning the local language and so forth. In that context he has achieved exceedingly well." (emphasis in original) 34 There is nothing in this, or any other passage in the remarks on sentence, that remotely justifies the description given to it in the Crown's written submissions (which were not prepared by counsel who appeared on the appeal). There is nothing in the remarks on sentence that demonstrates that undue emphasis was placed upon the subjective circumstances, unless that conclusion be drawn from the penalty itself. 35 In oral submissions on behalf of the Crown it was put that the sentencing judge gave erroneous emphasis to the result of the drug charge. What his Honour said was: "As I said earlier, it is an unusual case. … Clearly he was innocent of being involved in the manufacture of amphetamines. There is thus room for the position argued for by [counsel for the appellant] - that this was a man who knew he was not involved in the manufacture of amphetamine, but in his disingenuous and panicky state of mind attempted to close off the prospect that he might be wrongly convicted. That is possibly a speculative approach - after all I have had no evidence from Mr Waskin himself at any stage - but placing that proposition in the perspective of the whole situation, the circumstances of this offence are decidedly different from those in the cases cited by the Crown." (emphasis in original)

(The cases cited by the Crown included R v Rogerson (1992) 65 A Crim R 530 and R v Karageorge (1998) 103 A Crim R 157.) 36 A little later the sentencing judge said: "There are many mitigating features, as outlined above ." (emphasis added) 37 The Crown argued that these two passages, taken together, indicate that the sentencing judge was treating the appellant's presumed innocence on the drug charge as a circumstance mitigating the present offence. In this respect the sentencing remarks are not entirely clear, but I could not conclude that the judge fell into error in the sense put by the Crown. The most that could properly be concluded from the passages extracted is that the sentencing judge accepted the possibility that a "panicky state of mind" underlay the commission of the offence and that this was a mitigating circumstance. Even this was described by his Honour as "possibly a speculative approach" and I do not discern from the remarks on sentence that any significant weight was placed upon this matter. Even less do I discern any significant weight being attributed to the appellant's presumed innocence on the drug charge. 38 Notwithstanding these conclusions, I have come to the view, having regard to the serious nature of the offence, that there is substance in the Crown's final submission: that is, that the sentence itself evidences error. That is because a fine of $2,000 is simply inadequate to convey the disapprobation of the court of the appellant's conduct. By reason of s15 of the Crimes (Sentencing Procedure) Act 1999, together with s17 of the same Act, a fine of up to $110,000 may have been imposed upon the appellant. There was no evidence of his financial position and therefore no evidence to establish the degree to which the fine imposed constituted any significant burden upon him and therefore brought home to him the seriousness of his conduct. The sentencing judge did take into account that he had incurred legal expenses in defending the drug charge and, while it was open to his Honour to do so, it was not a matter that should have been, and was not, given a great deal of weight. 39 Taking into account all of the circumstances I have recounted, I cannot escape the conclusion that the Crown has made good its contention that the penalty imposed was manifestly inadequate. It simply did not reflect the gravity with which the courts view offences that threaten the due administration of justice. In view of the magnitude of the maximum available fine, the sentencing judge had ample room in which to move if a monetary penalty were the appropriate response to the level of criminality. But I do not think that a monetary penalty would have achieved the sentencing objective. This was an offence that called for a term of imprisonment and then consideration of whether it might be served by way of periodic detention. Pursuant to s66 of the Crimes (Sentencing Procedure) Act, no such sentence may be imposed unless the sentencing court is satisfied that the offender is a suitable person to serve a sentence in that way, that there is accommodation available at a periodic detention centre, that suitable transport arrangements are available to convey the offender to the periodic detention centre, and that the offender has signed an undertaking in the prescribed form to comply with his obligations under the order. In making such a decision the court is required to have regard to the contents of an assessment report and such evidence from a probation and parole officer as the court considers necessary. None of this evidence was before the sentencing judge and none of it was before this court. 40 On 17 February 2003, in order to ensure that it was in a position to give consideration to the full range of sentencing options, the court reconvened for the purpose of requesting the NSW Probation and Parole Service to prepare a report as to the appellant's suitability to serve a sentence by way of periodic detention, community service or home detention, and gave an opportunity to the parties to provide further written submission in the light of what emerged from that report. A Probation and Parole Service officer assessed the appellant as suitable both for a community service order and an order that the appellant serve a period of imprisonment by way of periodic detention. Both parties provided additional written submissions. 41 This court is not in possession of information as to the burden upon the appellant created by the fine that was in fact imposed. It has no information as to the extent of hardship that would be inflicted if the fine were to be increased to something that would on its face be more appropriate. 42 As a result of the court's request for further information, and invitation to provide further submissions, an affidavit sworn by the solicitor for the appellant was provided. No objection was signified on behalf of the Crown to the reception of this material. Given that I have concluded that the sentencing judge was in error, and that this court should proceed to re-sentence, I am of the view that the affidavit should be received as part of the material relevant to re-sentencing. The solicitor deposed that the appellant had incurred legal fees in respect of the current proceedings and the drug charge totalling $52,000. As well, his wife was also charged under s323 although eventually a nolle prosequi was filed in relation to that charge. Nevertheless, Mrs Waskin incurred legal costs of $17,000. 43 Both the sentencing judge and this court were told that the appellant's entitlement to practise as a pharmacist is under review, and if it eventuates that he is disentitled to practise, then it may be assumed that that circumstance will of itself create an additional heavy financial penalty. The information as to the appellant's professional future is sketchy. The Pharmacy Board of NSW has referred the matter to the Health Complaints Unit. From that alone, it is not possible to conclude that the appellant will lose his entitlement to practice as a pharmacist, although that must be a real possibility. 44 Having considered all these matters, I am of the view that a term of imprisonment to be served by way of periodic detention remains the minimum form of sentence appropriate to this offence. I am conscious of the constraints imposed upon this court in re-sentencing following a successful Crown appeal. Importantly, this court is obliged to sentence at the lower end of what would otherwise have been the available range. Such a sentence, in my view, would, at first instance, have been a sentence in the order of imprisonment for a fixed term of eighteen months to be served by way of periodic detention. Proof of the remaining formal matters to enable such a sentence to be imposed will be attended to on delivery of judgment. 45 I propose the following orders: (i) appeal against conviction dismissed;

(ii) Crown appeal against sentence allowed, sentence quashed;

(iii) in lieu thereof the appellant be sentenced to imprisonment for a fixed term of eighteen months to be served by way of periodic detention. 46 SMART AJ: I agree with Simpson J. **********

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