Thymiopoulos v The Queen [2012] VSCA 220

1 This is a renewed application for leave to appeal against a total effective sentence of five years and three months' imprisonment with a nonparole period of three years and three months imposed on the applicant on pleading guilty to one charge of conspiracy to pervert the course of justice and a summary charge of breach of an intervention order.

2 Originally the applicant sought leave to appeal against conviction and sentence. On 1 February 2012, Harper JA refused both applications. The applicant then elected to renew each application, but he has since abandoned the application for leave to appeal against conviction.

3 The facts of the matter are in relatively narrow compass. In 2009, the applicant and one Debra Hobbs were close friends. On 19 September 2009, police arrested the applicant for breach of an extended supervision order, the result of his alleged involvement with a teenage girl.

4 On 20 September 2009, Ms Hobbs spoke to police and, when told of the applicant's alleged involvement with the teenage girl, she alleged that the applicant was a stranger to her who had raped her on 18 September 2009.

5 On 24 September 2009, the applicant was sentenced to be imprisoned for seven days for breach of extended supervision order. At the conclusion of the sentence, he was detained pursuant to the extended supervision order, at first at Esotec in H M Ararat Prison and then in Corella Place, until 8 November 2009.

6 While in custody during September 2009, he had a series of telephone calls with Debra Hobbs, which were recorded by the prison authorities, of which the context and content were inconsistent with Ms Hobbs' allegations of rape.

7 On 15 October 2009, Ms Hobbs obtained an intervention order from the Magistrates' Court at Geelong which prohibited the applicant from contacting her by telephone.

8 During the early part of 2010, the applicant became increasingly angry over Ms Hobbs' allegation of rape and on 22 January 2010 he telephoned her twice in breach of the intervention order.

9 Subsequently, police monitored his telephone conversations pursuant to warrant and, on 24 February 2010, they recorded a telephone conversation between the applicant and his coaccused, Tunser Salih, in which the applicant asked Salih if he had any mates that wanted to make some money because the applicant wanted someone to bash a young woman to cause her to withdraw her allegation of rape. The applicant said that he wanted the job done as soon as possible for a sum of 'three grand'. Salih replied that he would do it as soon as possible and asked the applicant where he had to go. The applicant gave Salih Debra Hobbs' address and he said that he wanted Hobbs 'fuckin' smashed', 'bashed the fuck out of' and that she was to be told that if he has to come back, 'it's goina to be fuckin' worse. Salih replied, 'Alright'.

10 On 5 March 2010, the applicant was arrested and after a 'no comment' interview was charged with conspiring to pervert the course of justice. On the same day, he was remanded in custody and he remained so remanded until he was sentenced on 11 July 2011.

11 On 6 February 2011, the applicant was admitted to hospital for investigation of fevers and, after tests, was diagnosed as suffering from stage 4 Hodgkin's Lymphoma.

12 Following a committal hearing, on 1 June 2011 a bail application was made to the sentencing judge, although ultimately that did not proceed. Defence counsel told his Honour that there were then plea discussions under way which might lead to the Director of Public Prosecutions discounting the rape prosecution and the applicant pleading to the offences of conspiracy to pervert the course of justice and breach of intervention order.

13 During that hearing, the judge was also informed that the applicant had already served close to 13 months in prison and that, if the matter proceeded as a plea, defence counsel would attempt to persuade the sentencing judge to set a nonparole period no longer than the time already served. The matter was thus adjourned to allow discussions to continue.

14 On 8 June 2011, the matter came on again for mention before the sentencing judge, whereupon the Director filed a notice of discontinuous of the rape charge and the judge was informed that the applicant would plead to one charge of conspiracy to pervert the course of justice and the summary charge. In anticipation of the plea, the judge then heard evidence from one Dr Katherine Fong, the haematology registrar at St Vincent's Hospital and one of the medical team caring for the applicant. Dr Fong told the judge that the applicant had been diagnosed with Hodgkin's Lymphoma on 6 April 2011 and that it was at Stage 4. She explained that the applicant was receiving and would need to continue receiving chemo-therapy for some time, that he had a 71% chance of survival for 10 years. She said that if the applicant got through those 10 years, his chances of survival after that would probably be 'pretty good'.

15 The plea in mitigation of penalty was finally heard on 11 July 2011 and the applicant was sentenced the same day.

Application for leave to appeal against sentence

16 When Harper JA dealt with this matter on 1 February 2012, there were three proposed grounds of appeal against sentence. There is now also a fourth. First, it is alleged that the sentence is manifestly excessive. Secondly, it is claimed that the nonparole period is manifestly excessive. Thirdly, it is contended that the judge gave insufficient weight to the applicant's medical condition. In context that is perhaps more accurately viewed as a particular of the alleged manifest excessiveness of the head sentence and nonparole period. The proposed new fourth ground of appeal is based on what is claimed to be fresh evidence concerning the Parole Board's determination as to the earliest date on which the applicant may be released.

17 Like Harper JA, we do not consider that any of the first three grounds is reasonably arguable. As the sentencing judge said, the applicant's offence of conspiracy to pervert the course of justice was a particularly bad instance of that type of offending. Effectively, he conspired or agreed to have serious violence inflicted upon a witness with the threat of further violence if she did not withdraw her complaint. Plainly, that sort of offending strikes at the heart of the criminal justice system and, as such, it demands condign punishment. The applicant also had 94 prior convictions including convictions for violence, numerous instances of threat to kill, convictions for inflict serious injury and harassing a witness, and bleak prospects of rehabilitation. In the result, denunciation, deterrence, just punishment and community protection were at the forefront of sentencing considerations.

18 It is true, as counsel for the applicant submitted, that there are a number of cases in which offenders have been sentenced to lesser terms of imprisonment for offences of conspiring to pervert the course of justice. Some of them are recorded in tabular form in the sentencing remarks in R v Buscema[1] and were later reproduced in this Court's judgment in R v Tognolini,[2] as follows:

(2008) 75 ATR 545

[2005] VSCA 86

[2005] VSCA 265;

[2005] VSCA 265; (2005) 13 VR 85

[2005] VSCA 85;

[2005] VSCA 85; (2005) 11 VR 544

[2005] VSCA 87

[2000] VSCA 234;

[2000] VSCA 234; (2000) 117 A Crim R 114

[2007] VSCA 319

[1999] VSCA 94

[2007] VSCA 276

[2008] VSCA 22

[2001] VSCA 115

[2010] VSCA 63

[2003] VSCA 221

[2006] VSCA 75

[2008] VSCA 40

[2005] VSCA 24

[2008] VSCA 114

[2009] VSCA 81

[2002] VSCA 98

[2006] VSCA 203

[2004] VSCA 245

19 It is also true, as counsel contended, that in Tognolini v R the Court observed that the sentence of six years originally imposed in that case was possibly the most severe ever imposed in this state and beyond the range of current sentencing practices.[3] As the Court put it:

Counsel for the respondent conceded that the sentence imposed upon the applicant in respect of the count of attempting to pervert the course of justice 'might be described by some as "stern"'. Research by counsel for the applicant resulted in the preparation of the attached table. The sentence here imposed was 50 per cent higher than the highest sentence in that table. Counsel submitted that the sentence was 'possibly' the most severe sentence for the offence ever imposed in this State. The maximum sentence is high, but the offence may be constituted by a constellation of different circumstances.

We regard the sentence imposed upon the count of attempting to pervert the course of justice as outside the range reasonably open to the sentencing judge, appropriate regard being had to current sentencing practices. We would substitute a sentence of four years' imprisonment on that count.[4]

20 As Harper JA observed, however, each case is unique and, in this case, in view of the nature and gravity of the offending, the applicant's moral culpability and the consequent need for denunciation and deterrence, a sterner sentence was warranted. The Court's observations in Tognolini do not mean that regardless of the nature and gravity of an offence of conspiring the pervert the course of justice, a sentence of more than four years is beyond the range. Properly understood, they mean no more than that, given the facts and circumstances of that case, a sentence of six years was too much in that case.

21 In our view the nonparole period is anything but excessive. It represents a mere 61 per cent of the total effective sentence and as such is near to the bottom of what is sometimes, although perhaps problematically, called the usual or ordinary range. That accords with the sentencing judge's expressed intention of moderating sentence to allow for the added burden of imprisonment by reason of the applicant's medical condition.

22 The suggestion that the sentencing judge paid insufficient regard to the applicant's medical condition is misplaced. It is clear that his Honour took it into account because he made extensive reference to it in his sentencing remarks and as his Honour said, he made an allowance for its effect. We see nothing in his Honour's analysis of the effects of the condition, the sentence actually imposed or the nonparole period which suggests that his Honour was in any way in error in his approach to the matter.

23 In our view, the proposed new fourth ground of appeal is equally unconvincing. The gist of it is that, on 5 September 2011, the Parole Board made a determination that, as at present advised, it would contemplate releasing the applicant on parole six months before the expiration of his sentence, whereas the judge appears to have assumed that the Parole Board would be minded to release the applicant on parole as soon as he completed the nonparole period of three years and three months. Counsel for the applicant contends that this Court should receive evidence of those facts as fresh evidence in accordance with the principles essayed in the R v Nguyen.[5]

24 The difficulty with that submission is that, in Nguyen, the court was concerned with a case in which a sentencing judge had proceeded, as he was bound to do, on the assumption that parole granted in respect of a prior imposed sentence would not be revoked. Then, after sentencing, parole was revoked. In that event, the court held it was permissible to adduce fresh evidence of the revocation and seek to have the offender resentenced in light of that new development. Here, the converse is the case. Here, the sentencing judge was obliged to proceed on the assumption that the applicant might be required to serve every day of the head sentence. That remains the case. It is then a matter entirely for the Parole Board to determine how much more than the nonparole period the applicant should be required to serve.

25 As the Crown submitted, the argument now sought to be advanced on behalf of the applicant is tantamount to inviting the court improperly to interfere with the executive power of the Parole Board by resentencing the applicant in order to frustrate the Parole Board's intentions.

26 For those reasons we refuse the application for leave to appeal against sentence.

27 The order of the Court is that the application for leave to appeal against sentence is refused.

[1] [2011] VSC 206.

[2] [2011] VSCA 113.

1. [3] Although now see Pantazis v The Queen [2012] VSCA 160, where the appellants Pantazis, Issa and Elias each received sentences of eight years for attempting to pervert the course of justice.

[5] [2006] VSCA 184, [36].