Winter v R

Judgment 1McCLELLAN CJ at CL: I agree with Blanch J. 2BLANCH J: This is an appeal from a sentence imposed at Penrith District Court on 7 December 2009. The applicant was convicted after a trial which commenced on 22 September 2009 and concluded on 29 September 2009. She was charged with and convicted of one count of doing an act with intent to pervert the course of justice between 19 April 2008 and 25 April 2008 contrary to s319 Crimes Act 1900 which carries a maximum penalty of 14 years. She was also tried and convicted of a second count of doing an act with intent to pervert the course of justice on 25 July 2008. On the first count she was sentenced to a fixed term of two years imprisonment from 10 July 2009 and on the second count she was sentenced to a non-parole period of two years from 10 July 2010 with a balance of term of two years. The total sentence was consequently five years with a non-parole period of three years.

FACTS 3Both the counts relate to a Crown witness, Joel Stockton, who was to give evidence in the prosecution of the applicant's son, Wesley Hansaker, on a charge of breaking, entering and stealing in June, 2004. The witness Stockton had entered a plea of guilty to that charge and nominated Hansaker as a co-offender and volunteered to give evidence against him. He was sentenced to a community service order. 4The first count related to the creation by the applicant of a document purporting to be a retraction by Stockton of the evidence he had undertaken to give. This document was sent by the applicant to her daughter, Alana, with instructions to go to the courthouse with Stockton to have him sign the document in front of a justice of the peace. The further instruction was to keep the document so that it could be given to the Director of Public Prosecutions and counsel appearing for Hansaker at his trial which was to occur on 28 April 2008. By doing this, the applicant avoided the police being forewarned thus preventing them from investigating the change of intention by Stockton. 5The trial did not proceed and was relisted for hearing in the July sittings of the Court. In the meantime, Stockton told the police he would testify at the trial. 6The second count related to the fact that on 25 July, 2008 which was the Friday before the trial was to commence, the applicant rang Stockton and said to him " Are you a dog?" He said " Why?" She said " You know why." He said " Yeah." She said " Well, if you go to court on Monday you and your daughter and your mother's house will be burned down." 7He subsequently received text messages. One said " You're a dog. You won't keep custody of your kid. We will go against you, fucker, and think about your mother, cunt. Where will your mummy live?" Another message said " Copey (the police officer in charge of the case) won't give a fuck about you after it's all over, but I will be around for a long time and you and yours will suffer. You know that. You think about it." Another message read " Think about your daughter and mother. You can't hide." As matters transpired, Hansaker subsequently entered a plea of guilty to the charge. 8At the trial the applicant denied making up the document and denied making threats and raised various issues to add weight to her story. Having been convicted and remanded in custody, a pre-sentence report was ordered and that report stated: "Ms Winter acknowledged her involvement in threatening a witness and expressed her remorse. However, the level of her genuine remorse could not be gauged by this writer. " 9The first ground of appeal raises the issue that a miscarriage of justice has arisen due to fresh evidence relating to the medical condition of the applicant's second youngest child, Brodie Wilson born 29 December 1992. 10In dealing with the issue of hardship to members of the family, the sentencing judge said: " There may be no doubt there will be hardship occasioned to the children by her incarceration, but it does not amount to truly exceptional hardship such as to mitigate against the imposition of full-time custodial sentence ." 11The law relating to the consideration to be given to the effect of a term of imprisonment on third parties was set out in the judgment of this Court in R v Edwards (1996) 90 A Crim R 510, where in the judgment of Gleeson CJ, James and Ireland JJ it was said that only in highly exceptional circumstances should a Court be influenced by the hardship that an otherwise justified prison term would cause to third parties. Gleeson CJ said at page 516: " Justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional ." 12In R v Bednarz NSWCCA unreported 13 December 2000, Simpson J considered various authorities relating to the care of young children (see at page 3). She went on to say: " The sudden removal of his mother will result in a massive loss for (him) with negative physical and psychological consequences ." 13Her Honour also referred to R v Dib NSWCCA unreported 13 September 1991 where the Court was dealing with an offender who had an 18 year old son who suffered hypoxic brain damage because of a cardiac condition and where the offender was the only person able to care for him. Those circumstances were held to be highly exceptional. Obviously the facts in these cases differ and there is sometimes a fine line in deciding whether a case involves "highly exceptional hardship". In this case the judge found there was no "truly exceptional hardship" on the evidence before her and it is not asserted in the grounds of appeal that she erred in making that finding. The ground of appeal is rather that there is now fresh evidence to justify revisiting the issue as to the existence of "highly exceptional circumstances". 14The evidence available to the sentencing judge about her son Brodie's condition appeared in a number of reports. The probation report noted his serious medical problems since birth which have required ongoing specialist appointments. Dr McDonald from the Hunter New England Health Service noted that her son Brodie had significant anxiety disorder, attention deficit hyperactivity disorder, moderate receptive language disorder, significant scoliosis secondary to hermivertebra at T2, short right upper arm secondary to neonatal osteomyelitis, short gut syndrome causing vitamin B12 deficiency requiring regular vitamin B12 injections and migraine. He said in relation to the scoliosis " He may go to surgery ". Dr Magno in his report of 16 November, 2009 noted he suffered from spina bifida, scoliosis, Asperger's syndrome, asthma and ADHD and he said: " His scoliosis will potentially require surgery involving rods being inserted into his spine - he is awaiting an orthopaedic appointment with a specialist at Westmead Hospital. If he does require this surgery his rehabilitation will be prolonged and intensive. He will require adequate adult supervision for this ." 15From the material tendered before this Court it appears that Brodie underwent an operation on 22 June 2010 to correct his spinal problems. Dr Gray, who has been treating him, in a report dated 27 July 2010 said "It is likely that Brodie will require a wheelchair in the long term." A report from the South Eastern Sydney Illawarra Health Service prepared by a social worker indicates he was " discharged from the Spinal Injuries Unit to his newly modified home where he is living with his young brother and elderly grandmother who are both providing his care daily ." That report says " He has significant paralysis in his lower limbs and his prognosis to walk again is very slim ". He was referred to the Attendant Care Program but he was returned home because of the long waiting list. He has been assessed as requiring care hours under the program. In a report of 13 December 2010 Dr Gray expresses the view that when he is discharged he will need ongoing rehabilitation and " For this to be optimal, Brodie will need good family support". 16Brodie is currently being cared for by his younger brother and his grandmother. His grandmother is over 70 and has significant health problems and according to the probation report the youngest son who is helping with him has ADHD. 17The argument advanced is that the test of "highly exceptional circumstances" is made out because of the need for the applicant to care for her son. On the other hand, he is being cared for at the moment by his grandmother and brother. He is eligible for rehabilitation treatment and the house he is living in has been modified to assist with his needs. The applicant herself has various health issues which I refer to later and although it should be accepted she wishes to help care for her son, her own state of health does not make her an ideal carer. 18In my view the circumstances in this case do not meet the criteria of being highly exceptional even if the material produced on appeal could be said to be fresh evidence and for that reason, the arguments advanced by the applicant on this ground of appeal fail. 19The second ground of appeal argues that the individual sentences imposed on the two counts were manifestly excessive and that the total sentence imposed was manifestly excessive in that it breached the principle of totality. Some of the authorities relating to offences of attempting to pervert the course of justice were considered in the judgment of McClellan J in Regina v Marinellis [2001] NSWCCA 328 where at paragraph 36 he said: "The offences with which the applicant was charged carry a maximum sentence of imprisonment for fourteen years. This Court has previously indicated that this maximum sentence recognises the importance of protecting the integrity of the criminal justice system. The offence has been described as striking at the very heart of the judicial system. The need to reflect general deterrence is an important consideration when imposing a sentence for this offence (see R v Hakim CCA 5 September 1996 unreported ; R v Taouk (1992) 65 A Crim R 387 at 392 ; R v Purtell [2001] NSWCCA 21 ." 20That was a case where the applicant made attempts to persuade witnesses to provide him with a false alibi and offered significant financial benefits for this. The sentence under consideration was 20 months with a 12 month non-parole period in relation to two charges. 21Further consideration was given to appropriate sentences in these cases in the case of Einfeld v Regina [2010] NSWCCA 87 where the applicant had been sentenced to a term of two years imprisonment with an additional term of one year in respect of one count of perjury and one count of perverting the course of justice. His appeal against the severity of the sentence was dismissed in spite of the applicant's exemplary career and public service prior to the offences. In my view the sentences imposed in this case are individually appropriate for the seriousness of the offences. The second offence involved serious threats and was committed when it appeared that the first attempt to stop the witness testifying had failed. The sentence for the second offence was clearly appropriate and it should have been at least partly accumulated on the earlier sentence. It was a separate and distinct act of criminality and the degree of accumulation appropriately reflected the total criminality involved in the case. The overall sentence was, in my view, appropriate bearing in mind the fact the applicant went to trial telling more lies in order to try to be acquitted. Her belated admission of guilt to the Probation Service does very little to assist her case. 22The applicant is 52 years of age and was a sole parent living with her three sons aged 14, 17 and 24 in Tamworth. Her eldest daughter Alana lived in a town nearby with her four children. The applicant has been in receipt of a disability support pension since 2003. She has a number of physical ailments and mental health issues requiring medical treatment. She was diagnosed with bi-polar affective disorder in 2003 and has had psychiatric treatment and has twice been diagnosed with cancer. These factors were known to the sentencing judge as also was her criminal history which involves offences committed since 1987. Her criminal record shows she has received various penalties including fines, bonds, a community service order and one sentence of four months imprisonment which was suspended on appeal. Her last dishonesty offence was in 2005 for false representation resulting in a police investigation for which she was fined and her last conviction was in 2008 for drive while suspended for which she was fined. Bearing in mind the combination of the objective seriousness of the offences and her subjective circumstances, I do not believe the sentences imposed were manifestly excessive. 23The total sentence imposed here is well within the appropriate sentencing range. The applicant was persistent in attempting to pervert the course of justice and I am not satisfied that any less severe sentence is warranted in law in accordance with s6(3) of the Criminal Appeal Act 1912. 24Accordingly I would make the following orders: (1)Grant leave to appeal. (2)Dismiss the appeal. 25HOEBEN J: I agree.