New South Wales Supreme Court CITATION : R v Peter Frederick Clark [2001] NSWSC 656 FILE NUMBER(S) : SC 70003/01 18-20/4/01 HEARING DATE(S) : 23-24/4/01 15/6/01 JUDGMENT DATE : 25 June 2001 PARTIES : Regina Peter Frederick Clark JUDGMENT OF : Dowd J at 1 COUNSEL : Mr P Lynch- Crown Mr P Clark- in person SOLICITORS : Director of Public Prosecutions (NSW) CATCHWORDS : Pervert the course of justice - Sentence - Proportionality - Periodic detention LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED : R v Rushby (1997) 1 NSWLR 594. DECISION : 1. Sentenced to 12 months periodic detention, to commence on 13 July 2001 and to conclude on 12 July 2002. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION DOWD J 25 JUNE 2001 70003/01 REGINA v PETER FREDERICK CLARK REMARKS ON SENTENCE 1 HIS HONOUR: The prisoner stands for sentence in respect of an offence in which he has been found guilty by a jury, of doing an act with intent to pervert the course of justice, contrary to s319 of the Crimes Act 1900. That offence carries a maximum penalty of fourteen years imprisonment. 2 The facts of the proceedings are that the prisoner had a matter listed before the Taree District Court for the sittings commencing in February 2000, the judicial officer presiding being Christie DCJ. 3 On 23 February 2000, the prisoner appeared unrepresented before Judge Christie to raise a matter of a Subpoena, seeking documents which he said were relevant for the conduct of his appeal which was to be heard. It was listed for hearing on 2 March 2000. 4 The prisoner had appeared before His Honour previously on several occasions in relation to his own appeal, and in matters relating to his son. 5 At the end of some discussion in open court, the prisoner asked that a "very delicate issue" be raised with His Honour privately. His Honour acceded to this course and arranged for his Associate, the solicitor from the Director of Public Prosecutions, and the Court Officer to also be in the Judge's Chambers. 6 Several witnesses gave evidence, including His Honour, of the conversation which involved the prisoner saying to the Judge: "I have been told by Constable Smoothy that you are a corrupt judge and that you take bribes." In the same conversation, he also said: "I've also been told that you, or, your wife owns or runs a hotel in Sydney which has been used by your wife to launder money for organised crime." 7 The Crown alleged in the offence that these remarks were made so as to cause Judge Christie to disqualify himself from hearing the prisoner's appeal at the then sittings of the Court, and that the course of justice was perverted or obstructed by preventing the exercise of the capacity of the Court to do justice. 8 His Honour in fact disqualified himself. But that, of course, is not relevant to the matter before the Court, which is an offence carried out with the intention of perverting the course of justice. The fact that justice may or may not have been perverted, or that the Judge deterred from hearing the case, is not relevant to the commission of the offence. 9 The prisoner did not give evidence in the proceedings before me and there was very little contest in the course of the cross-examination as to the terms on the evidence to be admitted, as to what happened. 10 The prisoner had spent a considerable period in His Honour's court, watching the judge at other times, with the apparent intention of observing the way in which His Honour conducted himself. 11 I am satisfied, beyond reasonable doubt, that the prisoner, in addressing the Learned Judge in the way that he did, did that act with the intention of perverting the course of justice, namely, preventing His Honour proceeding to hear the matter involving the prisoner. I find, therefore, beyond reasonable doubt, that the offence occurred as proven by the jury's verdict of guilty. 12 The prisoner was born on 7 May 1953 and had a number of false pretences charges in April 1972, but no further offences until 1999 when he was involved in proceedings that bore some relationship to this matter and his son's matter. 13 With a view to this sentencing, a Pre-Sentence Report was ordered which was exhibited before me. Although the prisoner has not told the Court what his intention was, other than saying that he wanted to raise the matter involving Const. Smoothy, the purpose of raising that has not been made clear to the Court by the prisoner. Nonetheless, I accept that he is sorry for the trouble that he has caused. 14 The Pre-Sentence Report before me shows that the prisoner came to the attention of the Probation and Parole Service as a result of a matter which was dismissed on appeal when no evidence was offered, and convictions in the Lower Court were set aside. The prisoner is currently on bail awaiting sentence in relation to a matter of having goods in custody, reasonably suspected of being stolen. That matter is set down for sentence at Lismore District Court on 3 December 2001. 15 The prisoner resides with his daughter and her infant son, in rented accommodation at Taree. Three of his children live independently, his youngest child, aged sixteen, residing with his former wife. He remains in close contact with his children and they remain supportive of him, something which was evidenced by the assistance given by some of them in his trial. 16 The prisoner was educated in Sydney and left school at the age of fifteen. He held a variety of positions of short duration, and from 1974 to 1985, worked as a cinema projectionist. However, since relocating to Taree, he has held only casual positions. Following the separation from his wife in 1993, he had custody of his four eldest children and received a sole parent benefit. He subsequently established a computer sales business but his income was irregular and the business gradually ceased operation. 17 The prisoner's disability support pension is due to major depression and a diagnosed personality disorder. The prisoner is currently building a house for his daughter, with the assistance of his son. His court proceedings, however, which involve civil and criminal matters, have increasingly become his preoccupation. 18 The Probation and Parole Pre-Sentence Report concludes that he acted in good faith but that he accepts that he should have conducted himself differently. 19 The prisoner has undertaken psychiatric treatment at Newcastle Psychiatric Hospital in 1991, following threats of harm to himself and his children, and he has had prescribed for him a regime of antidepressants which he did not take as regularly as prescribed. After a charge involving one of his son's male friends, he sought psychiatric treatment and resumed his antidepressant medication. 20 The prisoner is currently on a tranquilliser to assist him with sleeping. 21 Over a period of time, as I indicated, the prisoner has represented himself in a number of court matters, and represented his son on some matters, which have totally absorbed his life. The Pre-Sentence Report evidences his intention to seek assistance to control his thinking. 22 I accept that the Pre-Sentence Report is of the opinion that the prisoner has made progress in accepting responsibility for his current situation, and that he is sincere in his desire to make the changes necessary to become involved in positive and fulfilling activities in order to overcome his obsessive behaviour. The report determines that for the purposes of the Crimes (Sentencing Procedure) Act 1999 ('the Act'), the Court, in sentencing, can take into account that he is considered suitable for periodic detention, a community service order, supervision, or a fine. 23 I have also taken into account medical evidence of Dr Michael Bowler of 9 March 1999, admitted before me, as to the prisoner's psychiatric problems. Dr Bowler has also specifically carried out an examination involving some serious injuries sustained by the prisoner as a result of a violent assault upon him, and adverts to the effect that that has had on the prisoner. I have also considered the report of Dr David Moore of 2 August 1999, as to the degree of confusion that could be expected from the severe brain impact to the prisoner's head and the treatment that he has had prescribed for the prisoner. That treatment causes confusion, euphoria, lack of concentration, dizziness and lethargy. Paradoxically, the doctor opined that it also causes reactions such as excitement, stimulation and hyperactivity, and that the medical treatment would cause some degree of error of judgment. 24 In sentencing, the Court is obliged to take into account the provisions of s5 of the Act, which states that the Court must not sentence an offender to imprisonment unless it is satisfied, having considered all of the alternatives, that no other penalty is appropriate. The alternative penalties such as community service orders; a good behaviour bond; a dismissal under s10 of the Act on certain conditions; deferral of sentence; suspended sentence; fines additional to good behaviour bonds; or fines as an alternative penalty, are matters which the Court also has to consider. The Court, of course, has the power to take into account that a maximum term is a factor to be taken into account only, but the Court may, of course, impose a lesser sentence. 25 The Court has had available to it the statistics from the Judicial Commission as to sentences generally, and in particular the Pre-Sentence Report and the attitude of the prisoner. In sentencing, the Court is obliged to take into account issues of deterrence, as noted in R v Rushby (1997) 1 NSWLR 594 at 597 to 598, where the Court expressed the view that sentencing "operates as a powerful factor to prevent the commission of such offences". 26 The Court is obliged to look at the general deterrence of such a serious offence as attempting to pervert the course of justice, as well as considering the other purposes of sentencing, which is to fix a sentence that is proportional to the seriousness of the offence; the question of rehabilitation; denunciation of the offence; and the protection of society. 27 The action of a person who attempts to prevent a judge proceeding to hear his matter is of the greatest seriousness. 28 The Crown, in its submissions, was limited in what could be said, in light of certain proceedings taken against the Crown Prosecutor appearing in this hearing. However, it was submitted by the Crown that this case was at the lower end of the scale of this offence. 29 The objective seriousness of the offence, however, is very great as the attempt in this case was successful in inevitably placing Christie DCJ in a position where he was obliged to decline to hear the proceedings to be heard before him. 30 The prisoner has placed before the Court a number of references, almost all of which were obtained prior to knowledge of this offence, and in addition, has placed before the Court the medical evidence to which I have referred, which is supported by the Pre-Sentence Report. 31 The prisoner had already been sentenced to a sentence of periodic detention for three months, although that sentence is on appeal. 32 I consider that in assessing the objective seriousness of the offence, I must take into account the contrition which I accept the prisoner feels and has demonstrated to the Court, and that his obsession with his court proceedings has caused him to conduct himself in a way which he would not otherwise have done. 33 I accept that he is generally a person of good character; that he is a good father to his children; and that he generally wishes to conduct himself in a way that does not involve the obsessive conduct which he has demonstrated in the actions taken by him. 34 Taking into account all the purposes of sentencing, and the subjective factors put before me, I consider that the Court is obliged to impose a sentence of imprisonment. Failure to do so, and to impose any of the sentencing alternatives, would not reflect the seriousness of the offence and the need for general and specific deterrence. However, in taking into account the circumstances of the offence, I consider that it would be proper for the Court to impose a sentence of periodic detention. A sentence by way of periodic detention would reflect the seriousness of the offence but nevertheless, allow the prisoner to continue with his assistance to his children; the rehabilitation that is involved; and the need for medication that he is taking, and the attitude that he has displayed. 35 In doing so, I propose to make the period of periodic detention a fixed term. From the nature of the period that I propose to impose, it is inevitable that a period of supervision at the end of it would be for a relatively short period only, and the problems of the prisoner are of a much longer nature. If I were to find special circumstances to lengthen the period of parole, the ultimate sentence would not sufficiently reflect the seriousness of the offence. Furthermore, I note that the prisoner is considered to be suitable for periodic detention. 36 Accordingly, having found the facts proved which support the conviction of an offence under s319 of the Crimes Act 1900, the prisoner is convicted and sentenced to a period of twelve months periodic detention. Such sentence will be served at the Tomago Periodic Detention Centre, to commence on 13 July 2001 and to conclude on Friday 12 July 2002. oOo Last Modified: 08/02/2001 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. 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