New South Wales Court of Criminal Appeal CITATION : REGINA v MARINELLIS [2001] NSWCCA 328 FILE NUMBER(S) : CCA 60805/00 HEARING DATE(S) : 6 July 2001 JUDGMENT DATE : 6 July 2001 PARTIES : The Crown Nikolaos Marinellis (Appl) JUDGMENT OF : Studdert J at 47; McClellan J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0420 LOWER COURT JUDICIAL Bell DCJ OFFICER : COUNSEL : D M Woodburne (Crown) P J D Hamill (Appl) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Appl) CATCHWORDS : SENTENCING - appeal against sentence - s 319 Crimes Act 1900 doing an act with the intent to pervert the course of justice - case where a custodal sentence was required LEGISLATION CITED : Crimes Act 1900, s 319 Kellow and Townsend [1980] 4 Crim LJ 55 R v Nomchong, NSWCCA, unreported, 10 April 1987 R v Irwin [1999] NSWCCA 361 R v Hani Taouk (1993) 65 A Crim R 387 R v Jordan, NSWCCA, unreported, 3 November 1997 CASES CITED: R v Purtell [2001] NSWCCA 21 R v Meissner, NSWCCA, unreported, 27 November 1992 R v Chapman NSWCCA, unreported, 21 May 1998 R v Bayeh [1999] NSWCCA 82 R v Karageorge [1999] NSWCCA 17 R v Lilley [2000] NSWCCA 57 R v Zreika [2000] NSWCCA 75 DECISION : See para 46 IN THE COURT OF CRIMINAL APPEAL No 60805/00 STUDDERT J McCLELLAN J FRIDAY, 6 JULY 2001 REGINA v Nikolaos MARINELLIS JUDGMENT 1 McCLELLAN J: The applicant seeks leave to appeal against sentences imposed on him by his Honour Bell DCJ on 24 November 2000. The sentences were imposed in relation to two charges of doing an act with the intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900. The offence carries a significant maximum penalty of fourteen years imprisonment. Bell DCJ imposed concurrent terms of twenty months imprisonment with a non parole period of twelve months in relation to each offence. It is submitted that these sentences are manifestly excessive. 2 On 20 December 1996, the applicant was charged with sexual assault alleged to have occurred on 16 and 17 June 1994. 3 The applicant had moved from Australia to New Zealand in August 1994, and on his return in December 1996, the Australian Customs authorities informed the New South Wales police. For this reason, it was not until 20 December 1996, that the applicant was charged with the sexual assault matters, and was granted conditional bail. 4 On 27 April 1997 the applicant saw an acquaintance, Ms Carmen Lyons, as she was walking along Canterbury Road, Belmore. He gave Ms Lyons a lift in his van and told her, amongst other matters, that he had been accused of raping a thirteen year old girl who had been dressed up by her mother to look sixteen. Late in May 1997, the applicant went to Ms Lyons' unit and said to her: "Can you get Russell and yourself and another friend or two, the more the merrier, to say that I was with you the night that the girl was supposed to be raped … If you would give me an alibi, the Crown would have no case and I would be able to sue the Crown for wrecking my life and I would give you half of whatever I got." 5 Ms Lyons did not immediately respond, although she did not reject the request for help. 6 On 30 May 1997 the applicant returned to Ms Lyons' unit and said to her: "Can you get a few of the girls together and get them to say that the police were pulling them over and saying that I've been done for raping a young girl. There would be $2,000 for each girl you come up with." 7 Ms Lyons, on this occasion, responded by saying that she would see what she could do. 8 On 1 June 1997, Ms Suzanne Lang, who was also known to the applicant, was at Canterbury Road, Campsie. She saw the applicant driving in his van and asked him for a lift to a nearby McDonalds' store. On this occasion the applicant told Ms Lang: "Listen you girls are going to have to help me out … You and Carmen and if you can get another girl to help me with an alibi and to say that we have seen the police harassing me and because I have been set up with a rape charge which I didn't do. That's why I need you girls to help me … If you help me with an alibi I will pay you for it … If you can't help me can you get somebody else that will give me an alibi and I will pay you for helping me out and give them some money as well." 9 Ms Lang responded by saying she did not want the applicant's money but explained that she was concerned about a court case in relation to custody of her children. Ultimately, she said she would see what she could do. Later that night, Ms Lang saw Ms Lyons and told her of the applicant's approach. Ms Lang rang the police and informed them of what had occurred. 10 During June 1997, the applicant continued to contact Ms Lyons in respect of his alibi. Ms Lyons kept putting him off. On 3 July the applicant went to Ms Lyons' home and gave her copies of statements in relation to the sexual assault matter. He asked her to look through them to see if she could pick up any discrepancies. The applicant asked Ms Lyons: "Have you come up with anybody who can put me somewhere else on the dates I was supposed to have done this?" 11 Ms Lyons did not respond positively, and the applicant left his papers and said he would ring again within a couple of days. 12 On 5 July 1997, the applicant rang Ms Lyons again and asked her about progress in relation to the papers he left. Ms Lyons said she had not yet had a chance to look at them. 13 On 7 July 1997, Ms Lyons contacted police and showed them the papers received from the applicant. Ms Lyons phoned the applicant, who later that evening went to Ms Lyons' home. They had a conversation which was recorded on a listening device. Ms Lang arrived at the unit during the conversation. During the course of the conversation the applicant discussed the contents of the prospective alibi and the possibility of obtaining evidence to discredit the complainant's mother. The applicant promises to do what he can for Ms Lyons in return for her help. 14 The committal hearing on the sexual assault matter commenced in December 1997. On 13 February 1998, the applicant was committed for trial in the District Court in relation to these charges. 15 The applicant was charged in relation to the present matters on 12 February 1998. He was committed for trial in respect of these matters on 23 April 1998. The trials for the charges of sexual assault and perverting the course of justice were listed as back to back trials to be heard on 11 January 1999 in the District Court. However, on 17 December 1998 the Director of Public Prosecutions directed that the sexual assault charges not proceed and they were "no billed". 16 On 11 January 1999 the applicant entered pleas of guilty in respect of the present matters. He subsequently applied for leave to withdraw those pleas on 11 February 1999. That application was heard but was not determined until 5 November 1999, when it was rejected. It was intended that the applicant would be sentenced on 22 March 2000. However, a further application for leave to withdraw the pleas was made to the judge who rejected the original application. The second application was rejected on 28 July 2000. The matters were then set for sentence on 22 November 2000. 17 Considerable medical evidence in relation to the applicant's psychiatric status was tendered before Bell DCJ. Evidence was also received from psychologists, in particular Duffy Barrier Robilliard. That firm carried out psychological testing upon the applicant which revealed "evidence of personality disturbance to a degree attracting a diagnosis of personality disorder … under stress Nick may have transient psychotic episodes." 18 Upon interview, it was recorded that the applicant "presented as distressed and showed signs of disorganised thinking" and a degree of "near hysterical" behaviour is recorded. The applicant apparently reported hearing "voices in his head telling him what to do". There are other reports, in particular from Dr Roberts, a specialist consultant psychiatrist, who has seen the applicant on a number of occasions for consultation and treatment. He concluded that: "In regard to a final diagnosis and assessment of this man I cannot state with absolute certainty that Mr Marinellis is suffering from the condition that he alleges nor can I state that he does not suffer from such a condition." 19 Dr Roberts gave oral evidence and indicated that, in his opinion, the applicant had features which reinforced an assessment of psychosis of the schizophrenic type. 20 It was submitted to the sentencing judge that, because of the applicant's psychiatric condition, he should approach the matter on the basis of diminished culpability. His Honour indicated that he had carefully read all of the material tendered, and although satisfied that in 1997 the applicant was distressed and anxious over the position in which he found himself, he could not conclude that there was anything to suggest bizarre or psychotic behaviour. He found that the applicant: "Formulated a plan in relation to obtaining false alibis, sought out people to assist him to complete it and he maintained contact with them for over two weeks in pursuance of that plan. It was not a spontaneous action, immediately regretted and not acted upon." 21 His Honour concluded by indicating: "I am not satisfied at all that when Mr Marinellis embarked upon his propositions to the prostitutes he was not fully aware and conscious of what he was doing and I am satisfied that he was in control of what he was doing." 22 In effect, his Honour rejected the opinion of Dr Roberts. 23 His Honour indicated that in approaching the sentencing of the applicant he had regard to the statistics gathered by the Judicial Commission of New South Wales. They disclosed that of eighty-two cases in the database, twenty-eight percent received full custodial gaol sentences, twelve percent periodic detention, and thirty-four percent received deferred sentences. Of the twenty-three cases receiving full time gaol terms the range of sentence was from six months to five years with thirty-five percent receiving two years. 24 His Honour identified the fact that the maximum statutory penalty was fourteen years, which he stated was "a clear indication of the seriousness in which these offences must be viewed." His Honour concluded: "Whilst the factor of rehabilitation must be kept firmly in mind the factors of general and specific deterrence must not be overlooked in order for a clear and strong message to be sent to those who might be inclined to attack the fabric of our society in this matter that the sentence to be imposed will be condign. The manner in which Mr Marinellis went about approaching the two women, his offer of money and his follow-up, albeit to a limited degree, demonstrate how serious he was in the matter. Although a prison sentence is a sentence of last resort, in the context of the seriousness of these offences I am of the view that no other sentence is appropriate. In accordance with Pearce's case I must state my decision as to a discount for the plea of guilty. In this situation it has only its utilitarian value, nothing is put before the court as to contrition. The offences are so closely associated that realistically one sentence is appropriate. I would impose a sentence of two years and the discount I assess on this is fifteen percent which reduces the head sentence by 3.6 months which I round off to four months in favour of the offender. That means a head sentence of twenty months imposed." 25 His Honour proceeded to sentence as I have indicated. His Honour found special circumstances and imposed a non parole period of twelve months. 26 The applicant submits that Bell DCJ erred in his assessment of the objective criminality involved and failed to properly take into account the circumstances in which the offences were committed. It is further submitted that his Honour erred in failing to give proper weight to the psychological state of the applicant both at the time the offences were committed and from that time until the date of sentence. 27 It is submitted that offences such as perjury, bribery and attempting to pervert the course of justice can arise in a variety of circumstances relevant to the administration of the system of justice. Attention is drawn to the statement in Kellow and Townsend [1980] 4 Crim LJ 55 at 56 where it is said: "The lowest level of perjury is that indulged in by a defendant in an attempt to escape conviction, and the highest level is that which seeks to obtain the conviction of an innocent person." 28 The offence encompasses cases where law enforcement officers engage in corrupt conduct: R v Nomchong, CCA (NSW), unreported, 10 April 1987, R v Irwin, [1999] NSWCCA 361; attempts to bribe judicial officers R v Hani Taouk (1993) 65 A Crim R 387; attempts to minimise penalty by use of false documents in sentencing proceedings; R v Jordan CCA (NSW) 3 November 1997; R v Purtell [2001] NSWCCA 21." 29 It is submitted by the applicant that the objective criminality of his offence falls well short of the criminality involved in many of the reported cases. It is submitted that the offence falls at the very bottom of the kind of cases postulated by the section for the reason that the applicant was motivated by the desire to achieve a just result, that is the applicant's acquittal, rather than an attempt to create a mischief in the form of a wrongful conviction or an improperly reduced sentence. 30 Emphasis is placed on the fact that the applicant was not a police officer or judicial officer or someone otherwise charged with the responsibility of upholding the law. 31 It is further submitted that there is nothing in the remarks on sentence to suggest that Bell DCJ took into account the fact that the applicant's actions were motivated by his desire to exculpate himself from false allegations. 32 Finally, it is submitted that an appropriate analysis of the statistics, and comparison with other cases decided under the section, indicates that the sentence imposed was excessive. In this respect attention is drawn to the following decisions of this Court: R v Meissner CCA (NSW) 27 November 1992; R v Nomchong CCA (NSW) 10 April 1997; R v Jordan CCA (NSW) 3 November 1997; R v Chapman CCA (NSW) 21 May 1998; R v Bayeh [1999] NSWCCA 82; R v Karageorge [1999] NSWCCA 213; R v Irwin [1999] NSWCCA 361; R v Mrish [2000] NSWCCA 17; R v Lilley [2000] CCA 57; R v Zreika [2000] NSWCCA 75; R v Purtell [2001] NSWCCA 21. 33 Emphasis was also given to the fact that the current statistics indicate that in seventy-one percent of all cases and in seventy-eight percent of all cases where pleas of guilty were entered, a sentence other than full time imprisonment was imposed. 34 With respect to the mental state of the applicant, it is submitted that Bell DCJ was wrong to reject the opinion of Dr Roberts and failed to take into account the distress and anxiety under which the applicant committed the offences, when assessing whether the principles of deterrence had a role to play in relation to the applicant's sentence. 35 It is submitted that his Honour should have had regard to the fact that the applicant was wrongly accused of aggravated sexual assault and that the commission of these offences was a response to that wrongful accusation. 36 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. 37 In my opinion, the submission made by the applicant to the effect that the present offence falls towards the bottom of the range of cases contemplated by s 319 should be rejected. The applicant made persistent attempts to persuade two witnesses to provide him with a false alibi, and endeavoured to persuade them to recruit others to give similar false evidence. The applicant not only acted with the intent of interfering with the proper processes of the law, but attempted to corrupt others by having them commit serious criminal offences. He offered them the prospect of significant financial consideration if they obliged his request. 38 I do not accept that the applicant's culpability should be reduced by reason of the fact that the charges of aggravated sexual assault were not proceeded with. The Court is not aware of the circumstances which motivated that decision and is unable to form any conclusion about the strength or otherwise of the Crown case. However, it is apparent that the applicant was committed for trial. The fact that the applicant believed it necessary to procure others to give false alibi evidence on his behalf suggests a belief in him that, unless this was done, he was at risk of being convicted. 39 In these circumstances, even if it be relevant, there was no basis for his Honour to conclude that the motive for the offence was to achieve a just result. I do not accept that even if the court was to assume that the applicant was the subject of false allegations, this was a significant mitigating feature. A result obtained by perjured evidence could not be described as just. 40 With respect to the psychiatric evidence, it is plain that the applicant has suffered, from time to time, from a disturbance of his personality. However, his Honour carefully reviewed all of the available evidence, and in my view, the conclusion he reached in relation to the applicant does not reveal any error. 41 Although, his Honour found that the applicant was not suffering from a relevant mental disorder, he nevertheless had regard to the fact that the applicant was under considerable psychological pressure at the time of offence. In my opinion, it was open to his Honour to find that the applicant was not suffering from a mental disability which would warrant a reduction in the weight to be given to the element of deterrence in any sentence. Having regard to his Honour's finding in relation to the applicant's mental health, there was no reason, related to his health, which would require a non custodial sentence. 42 In my opinion the offences committed by the applicant were serious. Although there may be exceptional cases where, having regard to the circumstances of the offence and relevant subjective considerations, a sentence of full time imprisonment may not be imposed, the appropriate sentence will normally involve a period of full time custody. 43 The relevant principles are discussed by Simpson J in R v Chapman CCANSW 21 May 1998, unreported. They were also considered in R v Aristodemou CCANSW 30 June 1994, unreported and R v Purtell [2001] NSWCCA 21. 44 In my opinion, neither the circumstances of the present offences, nor the applicant's personal circumstances would have justified a sentence other than full custody. Although the statistics indicate that many offenders have not received a full time custodial sentence for offences of this nature, it is impossible for this Court to know the individual circumstances of those offences. This is particularly the case when the section covers such a wide spectrum of possible factual situations. 45 Having regard to the approach which this Court has consistently indicated to be appropriate, a custodial sentence was required in this matter. Although in the result false evidence was not given, the offence was committed once the relevant act of seeking to obtain that false evidence took place. 46 In my opinion, the sentence imposed by his Honour was well within the discretion available to him. I propose that leave to appeal be granted, but I would dismiss the appeal. 47 STUDDERT J: This was a stern sentence, but it does not seem to me that it has been shown to be outside the available range of sentencing discretion, notwithstanding Mr Hamill's able submissions. 48 I agree with the orders proposed by Justice McClellan, and the orders of the court are therefore those proposed by his Honour. ****** 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.