Tourni v R

Court of Criminal Appeal (NSW)|2010-10-28|Before: Simpson J, Fullerton J, Hulme J

The applicant said: "… yes I mean I would say that I am working in the church". 32 A short time later the applicant's mother telephoned the applicant and informed him that Father Khoury wanted him to come to the church and to bring his CSO time sheets with him. During this telephone conversation Father Khoury could be heard in the background. 33 On 18 January 2006 Issenman again telephoned the applicant to inquire as to his progress in discharging his obligations under the existing CSO. The applicant said that he had been working at the church and that he would bring the paperwork into the office. He had not in fact performed any CSO hours at this date. 34 On 20 January 2006 the applicant telephoned his brother and told him that he intended to get Father Khoury to falsify his CSO time sheet, explaining that he hoped it would make him eligible to receive a further CSO for the fresh offences in the pending Local Court proceedings. The applicant said: "… I haven't even done like fifty seconds". 35 On 21 January 2006 Ishac assured the applicant that he would recommend him as suitable for a further CSO. The applicant said that it was his intention to get Father Khoury to falsify his existing CSO time sheet, to which Ishac replied: "No, just fuckin write dates and make him sign…". 36 Ishac told the applicant to return the (falsified) time sheet to him so he could have it officially recorded on the Probation and Parole Service database. He also provided the applicant with advice on how to obtain an adjournment on the first return date, then two days hence.

40 On 23 February 2006 the applicant returned to the church. He worked for 15 minutes until Father Khoury was ready to see him. As the applicant was unable to locate his own time sheet another offender's time sheet was photocopied and the applicant's name inserted on it.

41 In an intercepted telephone conversation later that day the applicant informed Ishac that he had seen Father Khoury and that he had signed off the time sheet. Ishac was concerned about whether the entries on the time sheet would conflict with any records held at the Probation and Parole Service office. Ishac told the applicant to bring the time sheet in so he could "sort it out" and enter the details into the system before court the following Monday. He told the applicant that if anyone asked he should say that he had completed his community service. He also told him that he intended to tell the magistrate that the applicant had fulfilled his obligations under the CSO. 42 The applicant told ICAC in April 2006 (truthfully it seems) that his time sheet was filled out on two occasions and that he believed the first six entries were made on 23 February 2006 and the balance on 24 February 2006. In the result his time sheet falsely recorded that he completed all his CSO hours between 22 November 2005 and 18 January 2006. All entries on the time sheet were signed by Father Khoury (using two different pens) certifying that the time worked was correct. They were countersigned by the applicant.

43 The applicant delivered his falsified time sheet to Ishac's home on 24 Fenruary 2006. Ishac attended the office of the Probation and Parole Service later that day and instructed Issenman to enter the information onto the system. He then called the applicant and said: "…. I went and handed it in … I just left it on [Issenman's] desk, I said enter all the hours in today 'cause you're going to court on Monday and you want them entered in, so it's all sweet".

The applicant responded: "… he deep down inside probably knows that I didn't do it, he won't give a fuck eh?". Ishac replied: "I am the organiser bro, he can't say shit … they answer to me you know".

44 On 27 February 2006 the applicant appeared in Fairfield Local Court in relation to the driving offences committed on 25 December 2005. At the request of the magistrate, the Probation and Parole court duty officer prepared a pre-sentence report based on the false information on the database which recorded that the applicant had successfully completed his CSO. The applicant also told the magistrate that he had completed his CSO. Given the applicant's driving record the magistrate observed that the applicant was perilously close to experiencing full-time custody but, in the circumstances, suspended a 6 months sentence and imposed a fine of $2000. The appeal against conviction

45 Section 319 of the Crimes Act provides: "A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years." 46 Section 312 provides: "A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law."

47 The CAN issued on 24 June 2008 is in the following terms: "That John Tourni between 22 February 2006 and 28 February 2006, at Sydney in the State of New South Wales did create a false Community Service Order time sheet with intent thereby to pervert the course of justice." 48 While the applicant's act is particularised in the CAN as a course of conduct, namely creating the false CSO time sheets over five days between 22 and 26 February 2006 (to which no exception has or could have been taken), the intention with which the applicant did that act is not further particularised in the charge. 49 As McColl JA said in Marinellis v R [2006] NSWCCA 307 at [8]: "The essence of the s 319 offence was doing an act intending to pervert the course of justice. In terms of the applicant's guilt, it was the tendency of the conduct which was decisive; it was irrelevant whether his conduct did or did not bring about a miscarriage of justice: R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 298 per McHugh J…".

50 Although the lack of particularity of the critical element of intent is not determinative of the conviction appeal, it gives rise to the question whether the charge to which the applicant pleaded guilty, as particularised, was an offence at all. On the applicant's case that question arises in one of two ways. Either the lack of particularity resulted in the failure by the prosecution to identify, within the scope of s 319, "the course of justice" the applicant intended to pervert by his admitted acts in falsifying the time sheets (which in turn led the judge to accept a plea of guilty when no offence had been committed), or the prosecution actually led the sentencing judge into error by inviting him to sentence the applicant on the basis that he intended to pervert the proper performance of those who administer CSOs so as to avoid the effect of a sentence that had been imposed upon him by a sentencing court, when that conduct is beyond the scope of the section. 51 As to the latter proposition, it was common ground on the appeal that the scope of what is comprehended by the concept of perverting the course of justice in the extended definition in s 312 does not include obstructing, preventing, perverting or defeating the statutory function exercised by the Probation and Parole Service of overseeing and administering the community service orders referred to it by a sentencing court (see Einfield v R [2008] NSWCCA 215 at [97]-[99]). However, were enforcement proceedings to have been commenced by the Probation and Parole Service which may have resulted in the revocation of the CSO in the Local Court, and the applicant's conduct was intended to circumvent that process, there is every likelihood that conduct would have been encompassed by the extended definition in s 312. In Einfeld the Court held that the expression "the administration of law" in s 312 is not to be accorded its literal meaning so as would include the exercise by a government of its functions in applying and enforcing the law of this State. Rather, the expression is to be understood as extending only to include the administration of the civil and criminal law by courts and tribunals. 52 The Crown accepted that there was a lack of particularity in the terms in which the charge was laid, and that the course of justice the applicant intended to pervert by falsifying the time sheets should have been identified. The Crown emphasised however, and in my view with justification, that the agreed statement of facts places it beyond any doubt that the applicant's intention at the time he created the false time sheets was to reduce the risk that a custodial sentence would be imposed when, within days of creating the documents, he was due to appear in the Fairfield Local Court for sentence. It was common ground on the appeal that this conduct is within the scope of s 319 since it was directed to undermining the capacity of the Local Court to adjudicate upon an appropriate sentence for the applicant's admitted breach of the criminal law in driving whilst disqualified (see R v Purtell [2001] NSWCCA 21; 120 A Crim R 317).

53 The Crown further submitted that despite the fact that it is the tendency of the act and the accompanying intention which is critical to a breach of s 319 (such that the fact that the applicant succeeded in misleading the magistrate was irrelevant to proof of the charge), his criminal intention is exemplified by the steps he took to actively mislead the Court into accepting that he had complied with the CSO. The fact that a miscarriage of justice resulted is material to the question of sentence (see Marinellis per McColl JA at [8], Latham J agreeing). The Crown also submitted that the fact that as early as August 2005 the applicant was intent on avoiding ever having to complete or even commence discharging his obligations under the CSO, and that he intended to take steps at that time, if necessary, to avoid being dealt with for failing to have done so, is not to the point. His conduct at that time is not the subject of the charge in the CAN and could not have been the subject of charge since at that time there were no curial proceedings pending and no evidence that the applicant contemplated the possibility that they might be instituted. The reasons for sentence

54 Because of the particular circumstances in which the appeal against conviction was brought, and the way the ground of appeal is expressed, namely that the applicant's (admitted) conduct in falsifying the time sheets did not constitute a breach of s 319 of the Crimes Act, the way the Crown put its case on sentence, and the facts found by the sentencing judge for sentencing purposes, require close analysis.

55 On 27 November 2009 his Honour published brief reasons for each of the sentences of imprisonment he imposed to which he attached the statement of agreed facts which I have summarised above at some length. He did not otherwise refer to the facts or to what they revealed about the applicant's intention when the false time sheets were created. In his sentencing remarks, and pointedly in respect of all three offences, he said: "The offences in relation to this particular offender are serious. All three offences require the administration of justice in this State. General deterrence to others as to this type of behaviour is very important in this sentencing exercise. By signing his name to the false timesheet to avoid performing his community service order from the Local Court, he interfered directly with the administration of justice. He was directly involved in a scheme and stood to benefit from it…" (emphasis added)

56 Later in his sentencing remarks he said: "…As I said earlier in these remarks, the offence of pervert the course of justice is a very serious offence striking at the heart of our system of justice and general deterrence must play a significant role in this sentencing exercise. The offender stood to gain directly from the offence…".

57 His Honour did not elaborate further on how the signing of the false time sheet interfered with the administration of justice and did not identify or specify the intention which accompanied that act. In so far as the benefit the applicant stood to gain, or in fact gained, his Honour did not specify whether it was achieved by the applicant avoiding his obligations under the existing order for community service or by reducing the risk of a custodial penalty for the further offending for which he was to be sentenced.

58 On the appeal the Crown made available the written submissions the prosecutor relied upon in the sentence proceedings. The following is extracted from those submissions, with emphasis added: "The offences that the prisoner has pleaded guilty to, and for which he is to be sentenced, strike at the very heart of our justice system and the administration of law in this State.

John Tourni benefited directly from the scheme he involved himself in to pervert the course of justice. In falsely signing the time sheet himself and seeking out Father Elias Khoury to also falsify his time sheet he avoided performing his community service order as sentenced by the court. He interfered directly in the administration of justice at that point. Further to this he used the false time sheet to certify that he had completed his order and was able to satisfy a sentencing Magistrate that he had in fact completed the order, clearly avoiding a condign penalty for the additional driving offence.

The role of the offender was as a principal participant and beneficiary of the scheme.

In the case of R v Taouk (1992) 65 A Crim R 387 at 392, his Honour Justice Badgery-Parker said: "[The act to pervert the course of justice] is more or less serious according to the nature and degree of the perversion of justice that was intended and that it seems to me is the major factor in evaluating criminality." The offender's actions had very real consequences for the administration of justice. His actions compromised the decision making capacity of a judicial officer. The community rightly has an expectation that sentence orders as a part of the administration of justice are complied with and not subverted. It is only with this expectation that the community can have full confidence in the integrity of the judiciary."

59 It is apparent that His Honour's remarks extracted at [55] and [56] above source directly from the prosecutor's submissions. 60 Although these submissions were directed to identifying the objective seriousness of the offence and not to proof of the offence, the prosecutor put the Crown case in such a way that his Honour was either misled into wrongly identifying, or was not assisted in properly identifying, the course of justice the applicant admitted that he intended to pervert by his plea of guilty. The dates within which the conduct occurred (namely 22 and 28 February 2006) should have been enough for the prosecutor to be alert to the fact that it was his conduct in seeking to mislead the Local Court in the pending sentencing process that was the gravamen of the offence, and not any intention to avoid the terms of the CSO imposed the previous year for similar but unrelated offending. It is clear from the passage underlined in the above extract that she did not appreciate the distinction.

61 Counsel who appeared for the applicant on sentence did not, apparently, see the error in the prosecutor's approach. His submissions focused on the most appropriate sentencing outcome for his client without reference to the precise conduct for which his client was to be sentenced. He is not to be criticised for that approach despite the fact that it added to the lack of appropriate focus on the precise conduct for which the applicant was ultimately sentenced.

62 I am compelled to the conclusion that the applicant was sentenced by his Honour for intending to avoid (and in fact avoiding) his obligations under the CSO imposed by the Local Court in July 2005. The fact that he was then able to mislead the Local Court in February 2006 was viewed by his Honour as an incidental benefit but not the conduct which constituted a breach of s 319. The question that arises is whether the conviction should be quashed for that reason.

63 In my view, it does not follow that because the sentencing judge failed to properly identify the intention that accompanied the applicant's falsification of the time sheets from the admitted facts (and to identify that conduct with precision for sentencing purposes), that he could not (and did not) commit the offence with which he was charged. The obligation of the informant when framing a charge is to identify the essential factual ingredients of the offence (see John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 per Mason CJ, Deane and Dawson JJ at 519; Lodhi v R [2006] NSWCCA 121 per McClellan CJ at CL at [97]). In this case the terms of the CAN did identify the offence charged, the dates upon which the offence was committed and the conduct alleged to constitute the act within the terms of the section. The deficiency lies in the fact that the way the conduct was intended to pervert the course of justice was not particularised despite the fact that it is alleged.

64 It is uncontroversial that the plea of guilty is an acceptance by the applicant of those matters which comprise the essential elements of the charge. In this case the facts relied upon as establishing the offence were agreed and, as I have observed, the statement of facts set out in considerable detail the applicant's conduct in falsifying the time sheets and what he intended to achieve by so doing. In these circumstances, and despite the irregularities in the sentencing process to which I have referred, I am not persuaded that the challenge to the conviction on the ground that the offence charged is not an offence known to law is made out. I would dismiss the appeal against conviction. I turn now to consider the appeal against the severity of sentence.

65 The first ground of the appeal against sentence contended that the sentencing judge erred in failing to take into account that more than two years had elapsed from the date of the commission of the offences before the applicant was served with CANs. Since the sentences imposed on the charges of giving false evidence have been fully served, counsel's submissions were directed only to the sentence imposed on the remaining charge under s 319 of the Crimes Act.

The extent of the delay 66 In dealing with the delay between the publication of ICAC's findings in September 2006 and the issue of the CANs in June 2008, the prosecutor on sentence submitted that despite the applicant's admissions to having given false evidence being admissible against him in criminal proceedings under s 87 of the ICAC Act, the prosecution was not able to utilise his admissions to secure a conviction on the charge of perverting the course of justice because of the operation of the statutory privilege in s 37 of the ICAC Act and, accordingly, a brief of evidence had to be compiled. While that submission may go some distance to explain what is a lengthy delay for the prosecution of a relatively straightforward case, I note that there was evidence in Ishac's sentence proceedings that the brief of evidence was with the Director of Public Prosecutions on 15 January 2007, and that the delay from that date to the issue of the CAN was unexplained. While in ordinary circumstances the evidence in the sentence proceedings of one offender would not be received on a sentence appeal of another, in this case his Honour made express reference to the evidence of delay and the submissions advanced by counsel for the co-offender when the applicant's counsel raised the issue of delay on behalf of his client. 67 In an exchange with the applicant's counsel his Honour said that: "If it is relevant here and if it is the same delay between the ICAC recommendations and the instituting of the charges then that delay is a matter of fact". There is, however, no reference to the fact of delay in his Honour's sentencing remarks and no way of discerning whether, and to what extent, delay was taken into account in the applicant's favour in the calculation of sentence.

68 The matter is further complicated by the fact that his Honour referred in the most general terms to the applicant's subjective circumstances, and to what the evidence shows as to the considerable and committed efforts he had made over the years intervening between the commission of the offences and sentence to change his attitude and outlook, despite the weight of evidence directed to that issue. He said: "I now turn to the subjective factors in the offender's favour and what follows is taken from the material tendered and the evidence of the offender before me. The offender was born on 27 April 1981, the second youngest of six children. His father is Greek and his mother is Lebanese. His parents separated when he was eleven years old and he then saw little of his father. He left home at sixteen with one of his brothers and completed school to HSC level. On leaving school he gained qualifications in floor and wall tiling and evidence of his qualifications and his impressive work history were tendered before me, exhibit B. He owns his own business in tile retailing and employs sub-contractors. He is single with no dependents. In the witness box the offender described the offences as 'very, very serious' and he was 'stupid' to do what he did. The offender has been seeing a psychiatrist who reported that the offender 'did not attempt to deflect any blame or responsibility for his offending behaviour'. I accept that the offender is remorseful. The attendance by the offender for counselling is positive for the offender's rehabilitation. The psychologist Mr Taylor regarded the offender as being "of low risk of recidivism" and the offender had 'come a significant distance with regards to his rehabilitation'. I consider the offender's rehabilitation to date and ongoing treatment to be a special circumstance."

69 As I noted in [22] above, the uncontradicted evidence tendered on sentence demonstrated a marked reversal in the attitude of the applicant to his obligations to abide by the law (and in particular the road traffic law) dating from his release from custody in August 2006 after serving five months for a large numbers of charges of driving whist disqualified. Mr Taylor, psychologist, expressed the opinion that: "The likelihood of Mr Tourni reoffending was discussed with him. He stated that he believes he now has learned his lesson and intends to lead a more productive and stable life. He said that during the last three years he has been developing his businesses and said 'I've grown as a person. I now see what is right and wrong'.

Mr Tourni stated that he is highly motivated to develop his businesses. He also stated that he is determined that he will not drive a motor vehicle until such time as he is able to drive legally."

70 The applicant's commitment to his business as a self-employed tiler was supported by testimonials from a number of industry-based colleagues, each of whom spoke of his honesty as a business person and his renewed application to developing his business and providing for his family. Mr Younes, the managing director of a design company, said: "I am aware that Mr Tourni's conduct in the past has been far from excusable. I note that most recently Mr Tourni has developed into a mature, hardworking and humble young man. He treats people in his community with respect and regularly goes out of his way to share information and assistance to those in need. Mr Tourni brings his character, experience, skills and commitment to his TileStone business and as such is a valued member of his profession. He has numerous contractors, suppliers, customers and members of the community who depend on his products and or services for the successful completion of their homes or business renovations, some of which he is currently in contractual agreement for the supply of goods. Mr Tourni often describes his life at present as "work, family and staying focused that is all I live for".

As someone who has given Mr Tourni feedback and advice on numerous occasions, I know that he responds very well to both. He has learnt the hard way through his prior custodial sentence the importance of respecting the law. I believe that since his release from custody in 2006 he has realised that he has so much at stake. Accordingly, I truly do not believe he would conduct himself in a way to risk jeopardising what he has successfully established over the years."

71 The applicant's accountant also corroborated the applicant's efforts over the preceding 18 months to enhance the financial viability of his business. 72 In TJ v R [2009] NSWCCA 99 at [19] McClellan CJ at CL restated the established principle that a lengthy delay between the apprehension of an offender and their sentencing may require weight to be given to the personal stress occasioned by the delay and the progress which the person may have made towards his or her rehabilitation at the time of sentencing. It was not submitted by the Crown that this sentencing principle has any different application in this case where there was a delay of two years and three months between the time when the applicant made admissions on his oath to ICAC and when the CANs issued, and a further period of one year and five months from that date until sentence was imposed. McClellan CJ at CL went on to note that if the delay is such that the offence would be considered a "stale crime" considerable leniency in the calculation of sentence may be appropriate (see R v Todd [1982] 2 NSWLR 517 at 519). In R v Blanko [1999] NSWCCA 121; 106 A Crim R 303 Wood CJ at CL said at [16]: "The reason why delay is to be taken into account in sentencing an offender relates to first to the fact of the uncertain suspense in which the person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach."

73 In my view, the sentence on the charge of perverting the course of justice fails to reflect this principle irrespective of whether it was passed on the erroneous characterisation of the offence by his Honour to which I have already referred, or the correct basis as revealed by the statement of facts as discussed above. I am of this view notwithstanding the objective seriousness of the offending and the fact that further offences were taken into account on the Form 1. 74 On the evidence the applicant was entitled to a considerable measure of leniency because of the lengthy delay and what I regard as the demonstration of his rehabilitation from at least August 2006. It is not apparent to me that the sentence imposed by his Honour reflected that fact. In these circumstances the error the applicant contends for in the first ground of appeal is made out. Since I propose to re-sentence the applicant it is not necessary to refer to the remaining two grounds of the appeal, save as to note that the asserted disparity between the sentence imposed on this applicant and Ishac is not a compelling argument given the different subjective cases of the offenders.

75 While the applicant's criminal record is lengthy for a man of 28 years of age at the time of sentence, apart from the serious offence constituted by a breach of s 319, his record is almost exclusively confined to driving offences, and what can only be described as his persistent disregard of the law in driving whilst disqualified or driving a vehicle unregistered or uninsured. Although general deterrence is an important consideration in the sentence under consideration, and one that properly overwhelmed his Honour's sentencing discretion in favour of a sentence of full-time custody, I am of the view that the term of that sentence should be moderated because of the delay in sentencing and the applicant's proven rehabilitation in the interim. I propose a finding of special circumstances in order to ensure that the applicant's ongoing treatment needs are met. 76 Although the sentence appeal is concerned only with the sentence imposed on the charge of perverting the course of justice, I consider that a reduction of four months on the aggregate non-parole period is appropriate. This would, however, involve the applicant being returned to custody to serve the remaining portion of the non-parole period of something approximating a month. In this case, after a successful appeal against sentence due to sentencing error, an interrupted period of full-time custody for an applicant with demonstrated rehabilitation does not serve the ends of justice. For this reason, and in the particular circumstances of this case, I propose fixing a non-parole period that will not require the applicant to be returned to custody but will expire on the day he was released to bail in this Court, pending the resolution of the appeal against conviction. 77 The orders I propose are: 1. The appeal against conviction is dismissed. 2 The sentences imposed on the charges of giving false evidence are confirmed. 3. The sentence imposed on the charge of perverting the course of justice is quashed and in lieu thereof a term of imprisonment comprising a non-parole period commencing on 27 March 2010 and expiring 22 October 2010 with a balance of term commencing on 23 October 2010 and expiring on 26 July 2011. The release of the applicant to parole is directed to have taken effect on 22 October 2010. 78 RA HULME J: I agree with Fullerton J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Einfield v R [2008] NSWCCA 215 John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 Lodhi v R [2006] NSWCCA 121 CASES CITED : Marinellis v R [2006] NSWCCA 307 R v Blanko [1999] NSWCCA 121; 106 A Crim R 303 R v Purtell [2001] NSWCCA 21; 120 A Crim R 317 R v Todd [1982] 2 NSWLR 517 TJ v R [2009] NSWCCA 99

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