Hart v Attorney-General for New South Wales

1. [1]

   HOEBEN CJ AT CL: I agree with Davies J.

2. [2]

   HARRISON J: I agree with Davies J.

3. [3]

   DAVIES J: On 22 August 2014 the Applicant was sentenced in respect of five counts of perverting the course of justice. A further five counts were taken into account on a Form 1 attached to count 5.

4. [4]

   The Applicant was sentenced to an aggregate term of a non-parole period of one year ten months commencing 22 August 2014 and expiring 21 June 2016 with an additional term of 11 months expiring 21 May 2017. The indicative sentences were as follows:

5. [5]

   The Applicant seeks leave to appeal against the sentence imposed on the following grounds:

6. [6]

   At the hearing of the appeal the Applicant was given leave to add a further ground as follows:

Facts of the offending

1. [7]

   The Sentencing Judge had before him a Statement of Agreed Facts. Although his Honour said that he would not set those facts out in full he did not describe the offences at all apart from saying:

2. [8]

   The following is a summary taken from the Statement of Agreed Facts.

3. [9]

   The Applicant was admitted to the bar on 19 December 1986. He held practising certificates for various periods but not continuously since 1 February 1989 both unconditionally and subject to restrictions. The Applicant cancelled his practising certificate on 1 October 2009.

4. [10]

   As noted, the offences related to acts taken on behalf of three of the Applicant’s clients.

5. [11]

   The Applicant was engaged in 2008 by Mr Wheaton to act for him in relation to an offence of driving with a prescribed concentration of alcohol in his blood. The matter was to be heard at the Downing Centre Local Court. On 7 October 2008 the Applicant appeared for Mr Wheaton and entered a plea of guilty on behalf of his client. The matter was adjourned for sentence to 17 October 2008.

6. [12]

   Lawfully intercepted telephone calls recorded the Applicant telling Mr Wheaton that they had to get the matter away from the Downing Centre and transferred to Camden Local Court. In the course of those conversations the Applicant told Mr Wheaton he would get the matter transferred to Camden Court and said:

7. [13]

   On 17 October 2008 the Applicant appeared for Mr Wheaton at Downing Centre Local Court. He told the Magistrate that Mr Wheaton was working at Oakdale and he supplied to the Court an address at Stevens Street, Oakdale. On the basis of those statements he sought the transfer of the proceedings to Camden Local Court. The Magistrate at the Downing Centre transferred the proceedings for sentence to the Camden Local Court on 11 November 2008.

8. [14]

   At the time the Applicant made those representations to the Magistrate at the Downing Centre Local Court he knew them to be false. That constituted count (1) on the Form 1.

9. [15]

   On 20 October 2008, in a lawfully intercepted telephone conversation between the Applicant and Mr Wheaton, the Applicant told Mr Wheaton that he was living at an address in Oakdale and that is what he was to say if he was pulled over. That constituted count 1.

10. [16]

    On 25 November 2008 the Applicant appeared for Mr Wheaton at Camden Local Court at the sentencing hearing. The Applicant made submissions that Mr Wheaton resided at Stevens Street, Oakdale, that he had moved to the area due to work commitments and that he had a need for a licence because he lived at Oakdale. At the time he made those representations he knew them to be false and did so in order to ensure that Mr Wheaton would receive a more favourable result and/or a lesser penalty. That constituted Count 2.

11. [17]

    In about March 2009 the Applicant was engaged by Ms Jessica Smith to act on her behalf in relation to driving with a prescribed concentration of alcohol in her blood.

12. [18]

    The matter was first listed at Sutherland Local Court on 19 March 2009. On that day the Applicant appeared and formally entered a plea of guilty on her behalf.

13. [19]

    He told the Court that Ms Smith was a special needs teacher who had been transferred to Wagga Wagga. He asked for the matter to be adjourned to the Local Court at Wagga Wagga for sentencing on 14 April 2009.

14. [20]

    At the time he made that representation to the Court he knew it to be false and he did so to have the matter transferred to a Court where he considered he could achieve a more favourable result for his client. That constituted count 4.

15. [21]

    In a lawfully intercepted telephone call between the Applicant and Ms Smith on 6 April 2009 the Applicant told Ms Smith that she should obtain references which indicated, contrary to the fact, that she had been transferred to Wagga Wagga. That constituted count (3) on the Form 1.

16. [22]

    On 14 April 2009 the Applicant telephoned a Police Prosecutor at Wagga Wagga Local Court, Sergeant Turner. He enquired of Sergeant Turner which Magistrate would hear the matter. He said that he, the Applicant, would not be in Wagga Wagga until after lunch that day, and he asked Sergeant Turner to mention the matter on his behalf before the Magistrate.

17. [23]

    About half an hour later on that morning he had a further conversation with Sergeant Turner where the Applicant was told that Magistrate Dare would be the only Magistrate sitting at the Local Court at Wagga Wagga in the week commencing 4 May 2009. The Applicant told Sergeant Turner that he wanted the matter adjourned because Ms Smith had a blood alcohol reading of .115 and the Applicant had some expectation that Magistrate Dare would give him an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

18. [24]

    The Applicant also told Sergeant Turner that Ms Smith had gone home to the Gold Coast on the weekend and could not get a flight which would enable her to get to Wagga Wagga for the hearing on 14 April 2009. Sergeant Turner agreed that he would mention the matter on behalf of the Applicant and seek to have the matter adjourned to 4 May 2009.

19. [25]

    The representation the Applicant made about Ms Smith was false to his knowledge. Between the two phone calls with Sergeant Turner that morning he had spoken to Ms Smith who told him that she was at the airport and her flight had been delayed until 9:30am. The Applicant told Ms Smith not to come to Wagga Wagga that day as his preferred Magistrate was off sick. That aspect of this matter constituted count (4) on the Form 1.

20. [26]

    Some six minutes after the second conversation with Sergeant Turner, the Applicant telephoned a secretary at a solicitors' firm in Wagga Wagga and dictated a letter addressed to the Presiding Magistrate at Wagga Wagga Local Court requesting that Ms Smith's matter to be adjourned until 4 May 2009. The letter contained the following statement:

21. [27]

    The statement was false to the knowledge of the Applicant. It was sent to the Local Court to ensure that Ms Smith would receive a more favourable result and/or a lesser penalty. That aspect of the matter constituted count (5) on Form 1.

22. [28]

    The matter came before the Wagga Wagga Local Court on 4 May 2009. The Applicant made the following statements to the Magistrate:

23. [29]

    Each of those statements was false to the Applicant’s knowledge. Subsequently the Applicant left a voicemail message for Ms Smith warning her that she should not speak about what had happened in Court that day. Those matters constituted count 5.

24. [30]

    On 14 June 2008 Todd Donohue was involved in a fight with a number of other men at Ulladulla. He was charged with affray and common assault.

25. [31]

    The Court Attendance Notice was returnable on 16 October 2008 at Milton Local Court. Todd Donohue’s address on the CAN was recorded as 163 Green Street, Ulladulla.

26. [32]

    The matter was adjourned on 10 October to 13 November 2008. Subsequently on that day the Applicant had a lawfully recorded telephone call with Mr Donohue’s father where the Applicant said he could fix things so that Todd Donohue would not get a conviction recorded against him.

27. [33]

    On 11 December 2008 the Applicant had a lawfully recorded telephone conversation with a Warren Peacock. The Applicant said he was transferring a matter for a plea down to Wagga Wagga and he needed an address. He asked Mr Peacock where he lived. Mr Peacock said it was Unit 5, 20 Travers Street, Wagga Wagga. The conversation concluded by the Applicant saying to Mr Peacock:

28. [34]

    Thereafter on that day the Applicant appeared on behalf of Todd Donohue before the Magistrate in the Milton Local Court. The Applicant told the Court that the prosecutor had agreed to withdraw the assault charge, and on that basis he had instructions to enter a plea of guilty to the charge of affray.

29. [35]

    He made the further following submissions to the Court:

30. [36]

    Those statements were untrue to the Applicant’s knowledge. On the basis of those statements the matter was adjourned to Wagga Wagga Local Court for sentence on 12 January 2009. Those statements constituted count (2) on the Form 1.

31. [37]

    On 12 January 2009 the matter was mentioned before the Wagga Wagga Local Court. A solicitor, Anthony Paul, appeared on behalf of Todd Donohue and mentioned the matter on instructions from the Applicant. Mr Paul said on instructions from the Applicant that:

32. [38]

    On the basis of those statements the matter was adjourned to Sutherland Local Court on 19 January 2009 for sentence. It was subsequently adjourned to 12 February 2009.

33. [39]

    On 12 February 2009 the Applicant appeared in Sutherland Local Court for Mr Donohue. During sentencing submissions he made the following statements:

34. [40]

    All of those statements were made by the Applicant and were untrue to his knowledge. Those statements constituted Count 3.

Subjective matters

1. [41]

   The Sentencing Judge had before him a report of Dr Olav Nielssen dated 1 March 2014. Dr Nielssen reported that the Applicant said he commenced drinking heavily when he joined the police force. He developed a high tolerance for alcohol and he could drink as much as a case of beer in a day and feel relatively unaffected. He told Dr Nielssen that he had numerous complications from alcohol use including uncontrolled gambling while affected by alcohol, the effect of alcohol on his professional judgment, being overweight, and three convictions for drink driving. He had stopped drinking altogether since starting AA meetings in 2009.

2. [42]

   In relation to the Applicant’s alcoholism the Sentencing Judge said that the Applicant:

3. [43]

   The Sentencing Judge also said:

4. [44]

   The Sentencing Judge also had a report from a dermatologist, Dr Robert Rosen. Dr Rosen said that he had diagnosed a malignant tumour in the Applicant known as a Merkel Cell Carcinoma in 2009. This is a skin cancer arising from a nerve in the skin. It is highly malignant and can spread throughout the body resulting in death. The overall five year survival rate is about 60%. Although the Applicant had remained free of this cancer for four years it can recur without warning at any stage.

5. [45]

   On 21 March 2011 the Court of Appeal ordered that the name of the Applicant be removed from the Roll of Legal Practitioners, declaring at the same time that he was guilty of professional misconduct and was not a fit and proper person to remain on the Roll.

6. [46]

   There were two bases for the application by the Bar Association. The first was the false statements made by the Applicant in the Wheaton and Smith matters (the subject of the present proceedings) and another matter where the Applicant made false statements to a local court (not the Todd Donohue matter). The second basis was because the Applicant engaged in legal practice and held himself out as a barrister although he did not have a current practising certificate on 21 October 2009.

7. [47]

   This was not the first time the Applicant had come to the attention of the NSW Bar Association. In 2006 he was found guilty of professional misconduct and unsatisfactory professional conduct arising out of tax offences in respect of which he had been convicted: New South Wales Bar Association v Hart [2006] NSWADT 97.

8. [48]

   On 30 September 2009 the Applicant was found guilty of unsatisfactory professional conduct in relation to a failure to provide a costs disclosure, a failure to make a disclosure in accordance with r 80 of the NSW Barristers’ Rules and a failure to return money to a client paid in advance when he had no claim on the funds concerned: The Council of the New South Wales Bar Association v Hart [2009] NSWADT 252. He was ordered to pay a fine of $5,000 within three months, failing which his practising certificate would be cancelled.

9. [49]

   An order was also made in these terms:

10. [50]

    The Applicant’s alcohol intake had brought him into contact with the criminal law prior to these events. On 26 October 1999 he was convicted of driving with a high range of alcohol in his blood. He was fined $750 and disqualified from driving for 12 months. An appeal to the District Court was dismissed. On 17 February 2000 he was convicted of driving with a high range of alcohol in his blood. He was fined $1,300 and was disqualified from driving for two years. An appeal to the District Court was dismissed.

11. [51]

    On 1 December 2000 he was convicted of driving while disqualified from holding a license. He was fined $1,000 and disqualified from driving for two years commencing at the conclusion of the prior disqualification period. It should be observed that driving while disqualified is an offence which involves a conscious and deliberate decision to flout the law: Tsakonas v R [2009] NSWCCA 258 at [39]. It is more serious where the offender is a legal practitioner.

12. [52]

    On 10 June 2008 the Applicant was convicted of driving with a low range of alcohol in his blood. In the light of his driving history he was dealt with mercifully with a s 10 bond for 12 months.

13. [53]

    The Sentencing Judge had a number of references and testimonials for the Applicant including a very moving one from his wife who detailed a number of tragedies within the family that she believed may have contributed to his drinking problem.

14. [54]

    The Sentencing Judge noted these references saying that it was relevant that the Applicant had the support of his family and professional friends. The Sentencing Judge said that some of the solicitors who had provided references were known to him professionally and they were people he respected. He said that they were able to see the good side of the Applicant but that they uniformly expressed their significant shock and disappointment at his slide into criminality. They recognised too late the significant alcohol problem he had.

Grounds of appeal

1. [55]

   The Applicant submitted that the Sentencing Judge drew a conclusion from the evidence that he would have benefitted financially from the crimes. The Applicant submitted that the Sentencing Judge was not entitled to make that observation or comment nor rely on it for sentencing purposes when it was never relied on by the Crown and when there was no evidence about it.

2. [56]

   In fact, the Remarks on Sentence make no reference at all to any financial or other benefit received by the Applicant as a result of the statements made to the various courts.

3. [57]

   During the Sentencing hearing the following exchange occurred (T8-9):

4. [58]

   His Honour makes no mention of that in his Remarks on Sentence. Statements by a sentencing judge during the course of argument are not ordinarily to be taken to represent a final and considered view: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at [32]; Hampton v R [2014] NSWCCA 131; 243 A Crim R 193 at [23].

5. [59]

   However, what his Honour said during argument is self-evidently true. The Applicant is likely to have been paid for appearing for each of the clients. But even if he was not, achieving good results for clients is likely to bring intangible benefits in terms of reputation which may be followed by new clients seeking the Applicant out. His Honour did not, in the exchange set out nor in his Remarks on Sentence, find that the offences were aggravated by that matter. No error is demonstrated.

6. [60]

   I would reject this ground of appeal.

7. [61]

   The Applicant drew attention to the High Court’s decision in Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 89 ALJR 475 to submit that ICAC was not permitted to investigate private persons when no finding of corruption had been made against a public official. Accordingly, the investigation which led to the charging of the Applicant by the Director of Public Prosecutions was illegal. The Applicant pleaded guilty when, at the time, the Crown had no lawfully obtained evidence to rely on to charge him. The Applicant submitted that this was not known at the time of the sentence proceedings. The Applicant made reference to s 138 of the Evidence Act 1995 (NSW).

8. [62]

   This submission contains a number of difficulties. First, the judgment in Cunneen was 15 April 2015, some 8 months after sentence was passed on the Applicant. At the time of the sentence no error was made because no basis was shown or could have been shown for an Ellis discount. This Court is a court of error.

9. [63]

   Secondly, it was only when the High Court decided Cunneen that the limitation on the powers of ICAC were identified. There was no impropriety in what led to the Applicant’s admissions and pleas.

10. [64]

    Thirdly, following from the High Court’s decision in Cunneen, the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) was enacted by the Parliament of NSW. The Act inserted Part 13 into Schedule 4 of the Independent Commission Against Corruption Act 1988 (NSW). Clauses 34 and 35 of that Schedule provide:

11. [65]

    In Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 89 ALJR 835 the High Court held that clauses 34 and 35 were validly enacted. The result is that anything done by the Commission that led to the investigation and the subsequent admissions and plea of guilty by the Applicant is taken to be validly done.

12. [66]

    No error is shown on the part of the Sentencing Judge. I would reject this ground.

13. [67]

    The Applicant submitted that he has a grim diagnosis of malignant skin cancer. He submitted that the Sentencing Judge disregarded the Applicant's health concerns and did not factor them into the sentencing outcome.

14. [68]

    The Sentencing Judge said this about the Applicant’s health and associated conditions:

15. [69]

    Elsewhere in his Remarks, the Sentencing Judge referred to the Applicant’s alcoholism. His Honour said:

16. [70]

    There is nothing to suggest that his Honour did not take those matters into account, having made specific reference to them.

17. [71]

    I would reject this ground of appeal.

18. [72]

    The Applicant submitted that the Sentencing Judge did not properly consider for parity reasons the matter of Anthony Paul.

19. [73]

    Mr Paul was a solicitor in Wagga Wagga. He acted for a client who had been charged with driving with a mid-range concentration of alcohol in his blood. The client lived in Centennial Park in Sydney.

20. [74]

    The solicitor told his client that there were five different magistrates at the Downing Centre and it would not be known which magistrate the client would get to deal with his matter. He asked the client to send the paper work to him so that he could write to the Court to have the matter adjourned to Wagga Wagga where the matter would go before a good magistrate.

21. [75]

    Mr Paul wrote to the Downing Centre Local Court saying that his client was working on a contract in Wagga Wagga and asked for the matter to be adjourned to Wagga Wagga Local Court. That duly happened and Mr Paul’s client was given a s 10 bond without a conviction being recorded.

22. [76]

    Mr Paul was charged with perverting the course of justice. He was sentenced by Judge Garling on 2 August 2013. He was given a sentence of imprisonment of one year and four months but that sentence was suspended.

23. [77]

    In relation to that, the Applicant submitted that Mr Paul’s conduct was similar to the Applicant’s but concerned a single client rather than three. The Applicant submitted that the outcome of a suspended sentence was vastly different from the full time custodial sentence given to the Applicant.

24. [78]

    In his Remarks on Sentence the Sentencing Judge said this:

25. [79]

    A ground of appeal that something is not properly regarded or considered is analogous to a ground of appeal that no sufficient weight was given to a particular matter. Consideration and weight are matters for the sentencing judge. In the light of the Sentencing Judge’s express reference to the matter of Paul, it cannot be said that he ignored the matter. However, it was just another case where the offender was charged with perverting the course of justice, albeit in a similar circumstance to the present.

26. [80]

    There were a number of differences between the Paul matter and the Applicant’s matter both objectively and subjectively. The Applicant was charged with five offences and five more on a Form 1. Mr Paul was charged with one offence. He had no criminal antecedents. He entered a plea at the first available opportunity and received a 25% discount. A large number of character references were tendered and taken into account. Judge Garling noted Mr Paul’s strong subjective case.

27. [81]

    The Applicant and Mr Paul were not co-offenders. Strictly speaking there is no issue of parity to be considered. Even if there were, it cannot be said that the Applicant has a justifiable sense of grievance over the difference in the sentences by reason of the differences in the offending and the subjective matters.

28. [82]

    I would reject this ground of appeal.

29. [83]

    The Applicant submitted that the considerations of Pearce v The Queen were misapplied in the sense that his Honour “placed too much emphasis on the charges (sic) with the form one attached”. He submitted that the Crown case only ever relied upon three individuals, and what was alleged was a continuing course of action by the Applicant over a period of time.

30. [84]

    What was said by the High Court in Pearce v The Queen (1998) 194 CLR 610 requires the Sentencing Judge first, to fix an appropriate sentence for each offence and, subsequently, consider questions of accumulation, concurrence and totality.

31. [85]

    In the present case, the Sentencing Judge imposed an aggregate sentence under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW). This section was introduced to ameliorate the difficulties that had emerged with the obligations required of a sentencing judge by reason of the High Court’s decision in Pearce: R v Nykolyn [2012] NSWCCA 219 at [31].

32. [86]

    His Honour correctly provided the indicative sentences on each of the five counts and then imposed the aggregate sentence. In doing so, his Honour applied what was said in relation to Form 1 offences in A-G’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2001) 56 NSWLR 146. In relation to that his Honour said:

33. [87]

    What was contained on the Form 1 were five separate acts of criminality. Those acts have been identified when the facts were earlier summarised. When it is remembered that each of those five further offences carried a maximum penalty of 14 years imprisonment, it cannot be said that there was too much emphasis placed on the Form 1 when the indicative sentence for count 5 was five months more than the indicative sentences for counts 2, 3 and 4. Further, in the light of the fact that the Sentencing Judge imposed an aggregate sentence, the complaint in relation to Pearce is misconceived.

34. [88]

    This ground should be rejected.

35. [89]

    The Applicant submitted that he was found by his Honour to be in no danger of re-offending. He submitted that he had no drug or continuing alcohol problems, nor did his offending involve violence. Despite those matters, the Applicant submitted that a lengthy parole period was imposed. That was said to be an error because his Honour should have imposed a fixed term if a full time custodial period was warranted.

36. [90]

    The Applicant’s written submissions did not make clear what the period of the fixed term should have been. This was clarified in his oral submissions so that what was put forward was a fixed term equal to the non-parole period.

37. [91]

    When it is remembered that the indicative sentence for count 5 was two years and three months, and the indicative sentences for counts 2, 3 and 4 (which indicative sentences may be taken as the total sentence for each count) was one year and ten months, it is difficult to see how his Honour could have imposed a fixed term sentence of one year and ten months only.

38. [92]

    Section 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides:

39. [93]

    No submission was made at the sentence proceedings that a fixed term should be imposed although the Sentencing Judge made it clear that he would be imposing a full-time custodial sentence. The default position is that a non-parole period will be ordered. The court has a discretion not to set a non-parole period. In circumstances where the court was not asked to exercise that discretion a decision not to impose a fixed term cannot be seen as an error.

40. [94]

    I would reject this ground of appeal.

41. [95]

    In his Remarks on Sentence the Sentencing Judge said this:

42. [96]

    In his oral submissions, having raised for the first time a complaint about the extent of the discount given for the pleas, the Applicant said this:

43. [97]

    In written submissions to the Sentencing Judge the Crown said this about the timing of the plea:

44. [98]

    At the sentence proceedings the Crown prosecutor said this:

45. [99]

    Shortly afterwards counsel for the Applicant said:

46. [100]

    It seems clear, therefore, that there was no offer to plead guilty until the Friday before the trial was due to start on the Monday. Further, as the facts make clear, the Crown had a very strong case against the Applicant.

47. [101]

    The amount of a discount for the utilitarian value of a plea is within the discretion of the Sentencing Judge. It cannot be properly contended that a discount of 10% in the circumstances was not an appropriate exercise of the Sentencing Judge’s discretion.

48. [102]

    I would reject this ground of appeal.

Extension of time

1. [103]

   The sentence was imposed on 22 August 2014. Apparently a Notice of Intention to Appeal had been filed on behalf of the Applicant within time. However, when no appeal was filed within the required time a Notice of Application for Extension of Time was not filed until 1 October 2015. The Notice of Appeal was filed on the same date. The Applicant’s explanation is that he missed the time for filing an application for extension because of being moved between prisons and the refusal of Legal Aid to act on any appeal. The Crown does not take issue with the appeal being out of time. Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [33].

Conclusion

1. [104]

   I would propose the following orders: