Saleem v The Queen [2014] VSCA 190

2 For the reasons that follow, we would grant leave to appeal, allow the appeal and make the orders which follow.[2]

3 The applicant is aged 39 years, having been born on 28 October 1974. He was arrested and charged with the current offence on 16 August 2013. At committal on 29 October 2013, he indicated a plea of guilty and the matter proceeded by way of straight hand-up brief.

4 It is necessary briefly to describe the applicant's offending. On 30 October 2012, the applicant was found guilty of the theft of a wallet after a contested hearing in the Melbourne Magistrates' Court. While standing in a queue at the post office on 4 May 2011, he had taken a wallet containing $300 from the bag of the customer standing in front of him. His conviction for this offence breached a two year suspended sentence of imprisonment imposed upon him on 17 December 2010 for theft and obtaining property by deception.

5 A consolidated plea hearing was fixed for 2 August 2013, to deal with the conviction of 30 October 2012 and the breach of suspended sentence of 17 December 2010, together with three further matters - an unlawful assault committed on 17 April 2012; theft and obtaining property by deception committed on 1 July 2012; and a related breach of a suspended sentence of one month's imprisonment (suspended for one year) which had been imposed on 12 December 2011, for offences of obtaining property by deception on 16 July 2009 and 1 September 2010.

6 For the purposes of the hearing on 2 August 2013, the applicant provided his solicitor with two documents which his solicitor tendered to the court as part of his plea on the applicant's behalf. The first document purported to be a letter addressed to the court from Dr Kanapathipillai of Coburg Family Medical Centre, dated 23 July 2013, which set out mitigating medical factors concerning the applicant's family; and the second purported to be a letter to the court from Mr Mehmood H Khan, an Imam from the Coburg Mosque, dated 12 July 2013, providing a character reference for the applicant and describing the applicant's personal and family hardships. These documents were tendered in an attempt to demonstrate exceptional circumstances so as to assist the applicant to avoid the restoration of the two wholly suspended sentences of imprisonment.

7 Having read the letters, the presiding magistrate indicated that the available material provided did show exceptional circumstances. The matter was stood down so that the applicant could be assessed for a Community Corrections Order.

8 Being suspicious as to the authenticity of the letters, while the matter was stood down police contacted Dr Kanapathipillai. She confirmed that, although the applicant and his wife were patients at her medical practice, she had not written the letter and that it was fraudulent.

9 When the matter was returned to the magistrate, the applicant admitted that the letters were false and that he had manufactured them.

10 Subsequently, police contacted Mr Mehmood H Khan. He confirmed that he knew the applicant and his wife as they attended the same mosque, but he was not a Muslim religious leader or Imam and he did not write the letter dated 12 July 2013.

11 Following his arrest on 16 August 2013, the applicant was interviewed and admitted having created both letters on his computer.

12 On 14 March 2014, when dealing with the applicant's plea of guilty to attempting to pervert the course of justice, the sentencing judge also had before him three appeals to the County Court from sentencing orders made by the Magistrates' Court.[3] Six months of the sentences imposed on the appeal were ordered to be served cumulatively with the sentence on indictment of attempting to pervert the course of justice, resulting in a total effective sentence of 20 months' imprisonment, upon which a non-parole period of 10 months was fixed. The sentences imposed on appeal were:

• a total of 51 days' imprisonment for unlawful assault, two charges of theft and obtaining property by deception (one month to be served cumulatively);

• four (4) months' imprisonment, the suspended sentence of 17 December 2010 imposed for theft and obtaining property by deception being fully restored (the whole to be served cumulatively); and

• one month's imprisonment, the suspended sentence of 12 December 2011 for offences of obtaining property by deception being fully restored (the whole to be served cumulatively).

13 During the joint hearing of the plea and the appeal, counsel for the applicant told the judge that the applicant was born in Pakistan in 1974, and came to Australia in 1997, having obtained a bachelor's degree from a university in Lahore. He married an Italian woman, with whom he had a child, before they divorced in 2005. The applicant married his present wife in Pakistan in 2006. They have four children aged 7, 4 and 2 years, and an infant aged 10 months. He has been employed in a variety of jobs.

14 With respect to his physical health, in 2002 the applicant had a kidney removed. He suffers from nagging, low-level health problems such as back pain.

15 So far as his psychological condition is concerned, the applicant has been diagnosed with a depressive disorder and a chronic anxiety disorder with obsessional traits. It was put that the applicant had failed to meet the expectations he had placed on himself and the expectations of his current and former wife. He has been a regular participant in a Men's Behavioural Change Program. Three psychiatric reports were tendered, the first being a report of Professor Paul Mullen dated 29 July 2013; and the second and third being reports of Dr Maxwell Gaynor dated 27 February 2014 and 5 March 2013.

16 As to the offending, it was submitted that charges of attempting to pervert the course of justice which have involved threats of violence or interference with a witness have generally been regarded as more serious than the kind of offending seen in the present case. It was submitted that the letters, whilst fraudulent, did contain information that the applicant maintained was mostly truthful. He had been trying to provide some external support for his own assertions. The letters were created in the crisis of the imminent prospect of imprisonment.

17 Counsel further submitted that the applicant had pleaded guilty at an early time and was remorseful. Despite the applicant's prior criminal history, he had reasonable prospects of rehabilitation. A term of imprisonment would have a profound impact. Counsel relied on Verdins.[4] In light of the applicant's mental health and personal and family circumstances, the applicant would find prison more onerous than an ordinary prisoner.

18 Whilst conceding that the applicant's circumstances, and those of his family, do not reach the point of exceptional hardship, counsel submitted that things would be difficult for the applicant's family if the applicant was imprisoned. The applicant's wife has no source of income (apart from social security payments to care for their children), has only been in Australia since 2009, and has limited support in the community.

19 Ultimately, although it was conceded that the applicant's conduct involved premeditation and planning, and that general deterrence was a relevant sentencing consideration, the imposition of a non-custodial sentence was open to the sentencing judge.

20 The prosecution submitted that an immediate term of imprisonment was appropriate, since the court came close to being duped by the letters, the generation of which involved premeditation and planning. It was submitted that the applicant had a long criminal history involving dishonesty offences, and that specific and general deterrence were relevant to the exercise of the sentencing discretion.

21 In his reasons for sentence, the judge said that in writing the bogus letters, the applicant 'resorted to a highly calculated and dishonest act designed to avoid liability for [his] own misconduct'. The judge summarised the applicant's criminal history, much of it for crimes of dishonesty, and observed that it is clear that the applicant has 'not taken the chances offered by the Courts'.

22 In his favour, the applicant had pleaded guilty at the earliest opportunity and had made admissions. He had facilitated the course of justice and was thus entitled to a 'significantly lesser penalty'. The judge also found that the applicant had remorse for his conduct.

23 With respect to the applicant's mental condition, the judge observed that the depressive and anxiety disorders from which he suffered increased the custodial burden on him, so that the fifth limb of Verdins was enlivened. The judge said, however, that it was not 'open to find that there is a serious risk of imprisonment having a significant adverse effect on [the applicant's] mental health or the conditions spoken of in the [psychiatrists'] reports'. Accordingly, the sixth limb of Verdins was not attracted.[5]

24 Though, as the judge noted, the applicant's wife will struggle in the applicant's absence, it had been conceded by the applicant's counsel that the hardship to the applicant's family was not exceptional. The applicant's burden would, however, be increased by his knowledge that his family will struggle to cope in his absence, and this was a factor to take into account in mitigation. An immediate term of imprisonment would have a 'deep impact' upon the applicant and 'will play a role in deterring [him] from future offending'. The applicant had reasonable prospects of rehabilitation. Some weight had to be given to specific deterrence; and 'a crime of this nature ... requires some significant weight to be attached to the principle of general deterrence'. The offence of attempting to pervert the course of justice is a serious offence, and the court was required to take into account the maximum penalty of 25 years' imprisonment.

25 In the judge's view, the applicant's was a calculated and serious crime, which should not be viewed as being in the lower range of seriousness. The conduct was premeditated and planned, and sought to interfere with the sentencing process. There was no choice other than to impose a term of immediate imprisonment.

26 Ultimately, the judge observed that he 'must take into account the principle of totality of sentence, and ... pay weight to the sentences ... to be imposed in relation to the three appeal matters'.

Resolution of the application for leave to appeal

27 There are four purported grounds of appeal, two of which (grounds 3 and 4) raise matters of which the Court cannot take cognisance.

28 The first ground of appeal claims that the sentence is manifestly excessive, and the second raises issues of family hardship. We will shortly turn to consider these two grounds, but first must dispose of the other two 'grounds'.

29 Ground 3 complains of the sentencing judge's description of the theft in May 2011, which was the subject of one of the appeals then before his Honour, as 'a most brazen one'. In his written case, the applicant states that, 'The fact of the matter is that I never committed this offence', and 'I did not do it'. The applicant also sought to attack certain of the judge's remarks directed to an offence of assault, which was also the subject of one of the appeals before his Honour. There are insurmountable obstacles in the way of the applicant's endeavour to agitate the complaints embodied in ground 3 in this Court. Simply put, the applicant's rights of appeal with respect to these matters were exhausted in the County Court.[6] There is no jurisdiction in this Court to entertain the grievances sought to be raised under the cover of supposed ground 3.[7]

30 For much the same reason, ground 4 cannot be entertained. So far as we can tell, this ground is directed to the judge's failure to find the existence of exceptional circumstances[8] when dealing with the breaches of suspended sentences which were before him on two of the appeals. The applicant's rights of appeal with respect to the restoration of the suspended sentences were exhausted in the County Court.

31 Although the Court is without jurisdiction to entertain grounds 3 and 4, in the course of the oral hearing of the application for leave the applicant asked the Court to conclude that the sentencing judge's approach to the subject matter embraced by these grounds demonstrated a mindset against him, or otherwise infected the judge's approach to the issue of totality. We will return to this submission when dealing with the first ground. It is convenient next to turn to the second ground of appeal, which claims family hardship. In our opinion, the ground is without substance. With respect to family hardship, experienced counsel for the applicant on the plea conceded the absence of exceptional circumstances. Based on the available material, that concession was proper. Despite criticisms levelled at his counsel by the applicant during the oral hearing of the present application - the applicant claimed that counsel was unprepared - it is plain that the concatenation of the various circumstances relied upon concerning the applicant's family did not establish that any hardship was exceptional. An examination of counsel's presentation of the applicant's case to the sentencing judge amply demonstrates that the applicant's criticism of him is not justified. On our reading of the transcript, counsel was adequately prepared, and had an adequate grasp of the applicant's circumstances and the applicable sentencing principles.

32 Moreover, none of the matters relied upon by the applicant in this Court - his wife's lack of English, social isolation, lack of a driver's licence and various medical conditions; the financial strain on the family, including the burden of mortgage repayments and of the children's private school fees; and the circumstances of his widowed mother - when taken alone or in combination, are capable of establishing exceptional circumstances warranting the intervention of this Court.[9] They are the kind of circumstances that are to be found in many cases where a husband, father and breadwinner is imprisoned.

33 Turning finally to the first ground, under the umbrella of which the applicant relies on several factors to make good his claim that the sentence is manifestly excessive, the applicant asserts that:

• the judge gave insufficient weight to the psychiatric reports of Professor Mullen and Dr Gayner;

• the judge's mind was 'closed from the outset' when it came to consideration of the sixth principle from Verdins;

• the judge did not give adequate weight to the circumstances of the applicant's wife and children; and

• the judge failed 'to have regard to the principles of general and specific deterrence'.

34 In our opinion, the individual sentence of 14 months' imprisonment imposed on the applicant for attempting to pervert the course of justice might be regarded as stern, but it was well within the range of those open in the proper exercise of the sentencing discretion. The reports of the psychiatrists were not capable of founding an inference that the applicant's imprisonment might have a significant adverse effect on his mental condition, and the family hardship relied upon was not exceptional.

35 The applicant's offending was serious. It was a cynical and calculated attempt to deceive a Court into imposing a sentence to which he was not entitled. Had it not been for the vigilance of police, the applicant might well have succeeded in duping the presiding Magistrate. Indeed, based on the forged letters, the Magistrate had achieved a preliminary state of satisfaction that exceptional circumstances existed, such that she was not required by law to restore the sentences of imprisonment that previously had been suspended. The applicant's offence strikes at the heart of the administration of criminal justice, and is designed to erode the confidence that should exist between the Bench and those appearing for sentence.

36 We do not lose sight of the applicant's assertion that the contents of the two letters were factually accurate; or of the judge's apparent acceptance of counsel's submission that 'whilst there was clearly truthful material ... within the references, there was also a level of exaggeration'. Examination of the documents themselves, however, demonstrates that at least some of their contents plainly is false. And as the sentencing judge aptly put it, the applicant wrote his 'own script, but seemingly at least to the Magistrate, in the hand of two people badged with the authority of their office pleading [his] case'.

37 In this Court, the applicant submitted that his manufacture of the letters was impulsive, spontaneous and unpremeditated. We reject that submission. The letter from the doctor appeared to be on the letterhead of the doctor's clinic, which the applicant had mocked-up from a genuine document so as to provide his forgery with a veneer of legitimacy and plausibility. Further, as the sentencing judge observed, the letters written by the applicant were 'lengthy and thoughtful references'. The applicant had ample opportunity to draw back from his conduct, but he chose to provide his lawyer with the two forgeries in full knowledge that they would be provided to the Magistrate in an endeavour to influence the sentencing process. Although his offending was not protracted, it can hardly be said that it was without premeditation.

38 We note that, when making his oral submissions in this Court, the applicant several times repeated that, had he realised that the offence attracted a penalty of 25 years' imprisonment, he would never have committed the offence. That submission must be summarily rejected. An offender's assertion that he or she was ignorant of the maximum penalty available for an offence can have no relevance to the exercise of the sentencing discretion.

39 General and specific deterrence were both important in the sentencing of the applicant. Indeed, the judge's finding that there were 'reasonable' prospects of rehabilitation might be seen as optimistic, given the applicant's criminal history, commencing in 1999 with convictions for indecent assault and assault, and continuing up until recent times with multiple dishonesty offences, including obtaining property by deception, theft, going equipped to steal and possessing the proceeds of crime. The current offence was an attempt to use forged letters, in a dishonest attempt to influence a court in his favour. Although, of course, he is not to be punished again for his prior convictions, any claim for leniency he might otherwise have had is reduced. The prior convictions cast light on the applicant's prospects of rehabilitation and his risk of recidivism, and the corresponding need for community protection.

40 It was argued by the applicant that the judge had mischaracterised the seriousness of the offending. We disagree. The sentencing judge was correct when he rejected a submission made to him by the applicant's counsel that the offence 'should be viewed at the lower range of seriousness'. Clearly, however, the judge was also correct when he said the applicant's crime 'falls well short of the most serious category of the offending'. Beyond those observations, in our view it is not a very productive exercise to assay any further categorisation of the applicant's offending. Although far from being in the worst category, it was not in the lowest category.

41 Tognolini[10] was a case where the Court of Appeal substituted a sentence of four years' imprisonment for one of six years imposed at first instance, in circumstances where the applicant had arranged for two girls to make false affidavits. As the table of cases set out in Tognolini[11] shows, sentences imposed for attempting to pervert the course of justice vary widely according to individual circumstances. In Aydin,[12] Eames JA observed that 'the offence may embrace a wide spectrum of criminal conduct';[13] and Callaway JA commented that the relevant statutory maximum penalty for the offence of 25 years' imprisonment 'has to be kept in perspective', and cautioned that '[o]ne must beware of the fallacy of naïve fractions'.[14]

42 In oral argument on the application, Briggs[15] was referred to. That case involved one count of attempting to pervert the course of justice in relation to the judicial power of the Commonwealth by producing a forged medical report to a judge of the County Court in support of an application for an adjournment of an appeal. Following a trial, the applicant was sentenced to be imprisoned for 12 months, but to be released on recognisance after serving two (2) months. The Court of Appeal confirmed the head sentence, but it was ordered that the applicant be released after serving one (1) month's imprisonment. There are two observations we would make about Briggs, which distinguish it from the present case. First - and paying due heed to the note of caution sounded by Callaway JA in Aydin - the offence of which Briggs was found guilty carried a maximum penalty of 10 years' imprisonment[16] (as opposed to the statutory maximum applicable in the instant case). Secondly, Briggs' history showed that he had at one time been a hardworking and successful general medical practitioner without prior convictions, who had for many years undergone psychiatric care for a major depressive disorder. Hence, in our view, the sentence in Briggs provides little guidance generally as to current sentencing practices[17] for the offence of attempting to pervert the course of justice, or as to the correctness of the particular sentence under consideration.

43 Given the foregoing, in our opinion the sentence of 14 months' imprisonment imposed for attempting to pervert the course of justice cannot legitimately be said to be manifestly excessive. But that is not the end of the matter.

44 As we have earlier noted,[18] when dealing with the applicant's plea of guilty to attempting to pervert the course of justice, the sentencing judge also had before him three appeals to the County Court from sentencing orders made by the Magistrates' Court. In endeavouring to impose an overall sentence for the offence before him on indictment and for the offences the subject of the appeals, the judge ordered that six months of the sentences imposed on the appeals be served cumulatively with the sentence on indictment, resulting in a total effective sentence of 20 months' imprisonment, upon which a global non-parole period of 10 months was fixed.

45 In this Court, counsel for the respondent properly conceded that the ground of appeal asserting that the sentence was manifestly excessive permitted - if appropriate - adjustment of the order made for cumulation as between the sentence for the offence on the indictment and the sentences imposed on the appeals. The concession by the respondent's counsel was consistent with this Court's decision in Ludeman,[19] where it was held that an order for cumulation is a 'sentence', so that s 278 of the Criminal Procedure Act 2009 permits a challenge to such an order. Moreover, the term 'sentence' in s 278 embraces not only each individual sentence imposed and any consequential order made for cumulation (or concurrency), but also any non-parole period which is fixed.[20]

46 Although - at the risk of repetition - we are of the view that the sentence imposed for attempting to pervert the course of justice was proper, nonetheless we are also of the view that the order for cumulation between that sentence and those imposed on the appeals was manifestly excessive.

47 In our opinion, the order for cumulation produced an overall sentence that insufficiently reflects the dictates of totality. Although the offences for which the applicant was sentenced on the appeals were separate and distinct from each other and the offence on the indictment, nevertheless the attempt to pervert the course of justice had a close connection to those offences. The offence was committed so as to try to avoid some of the sentencing ramifications flowing from his breach of suspended sentences which had been imposed for the offences the subject of the appeals.

48 Moreover, there were a number of matters in mitigation which, although not amounting to circumstances which were exceptional, bore on the degree to which cumulation was to be ordered as between the various individual sentences.

49 Importantly, the applicant had not previously been required to serve any sentence involving actual confinement. That aspect is not, in our view, adequately reflected in the orders made by the sentencing judge.

50 The application for leave to appeal against sentence should be granted and the appeal allowed.

51 Since the Court is without jurisdiction to resentence the applicant on the sentences imposed in the County Court appeals, no order can be made with respect to the individual sentences in those appeals, or the orders for cumulation made with respect to the sentences between them.

52 The sentence of 14 months' imprisonment for the offence on the indictment, attempting to pervert the course of justice, should be confirmed. We would order that 10 months of the sentence on the charge of attempting to pervert the course of justice be served cumulatively upon the sentences imposed with respect to the County Court appeals, effecting an aggregate sentence of 16 months' imprisonment. We would fix the period of eight (8) months being the period during which the applicant is not to be considered eligible for release on parole.

53 Save for declaring pre-sentence detention, we would confirm any other ancillary orders.

[1] Attempting to pervert the course of justice is an offence at common law. By s 320 of the Crimes Act 1958, the maximum penalty is 25 years' imprisonment.

[2] At [50]-[53] below.

[3] See County Court Act 1958, s 53A; Criminal Procedure Act 2009, s 254.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins') (Maxwell P, Buchanan and Vincent JJA).

[5] The fifth and sixth Verdins principles are (276 [32]):

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

[6] We note that prerogative relief had not been sought at any stage with respect to these matters.

[7] Criminal Procedure Act 2009, s 283.

[8] Sentencing Act 1991, s 83AR(2).

[9] Markovic v The Queen (2010) 30 VR 589; Ramezanian v The Queen [2013] VSCA 71; (2013) 37 VR 92.

[10] Tognolini v The Queen [2011] VSCA 113; (2011) 32 VR 104 (Maxwell P, Buchanan and Redlich JJA).

[11] Ibid 116. See also Thymiopoulos v The Queen [2012] VSCA 220, [18].

[12] DPP v Aydin and Kirsch [2005] VSCA 86.

[15] R v Briggs [2000] VSCA 234; (2000) 117 A Crim R 114.

[16] Crimes Act 1914 (Cth), s 43.

[17] Sentencing Act 1991, s 5(2)(b).

[19] _Ludeman v The Que_en (2010) 31 VR 606.

[20] Ibid [55]. See DPP v Jones (a pseudonym) [2013] VSCA 330, [18].