R v Einfeld [2009] NSWSC 119

New South Wales Supreme Court

CITATION : R v Einfeld [2009] NSWSC 119

HEARING DATE(S) : 25-27 February 2009

JUDGMENT DATE : 20 March 2009

JUDGMENT OF : James J

For the offence of perjury — sentenced to a non-parole period of imprisonment of one year two months commencing on 20 March 2009 and expiring on 19 May 2010 and a balance of the term of seven months commencing on 20 May 2010 and expiring on 19 December 2010. DECISION : For the offence of perverting the course of justice — sentenced to a non-parole period of imprisonment of one year three months commencing on 20 December 2009 and expiring on 19 March 2011 and a balance of the term of one year commencing on 20 March 2011 and expiring on 19 March 2012. Parole order for release on 19 March 2011.

CATCHWORDS : SENTENCE — perjury — perverting the course of justice

LEGISLATION CITED : Crimes Act Crimes (Sentencing Procedure) Act

CATEGORY : Sentence

PARTIES : Regina EINFELD, Marcus Richard

FILE NUMBER(S) : SC 2008/240

COUNSEL : W G Roser SC (Crown) I M Barker QC / D R Campbell SC (Prisoner)

SOLICITORS : S Kavanagh (Solicitor for Public Prosecutions) Verekers Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

FRIDAY 20 MARCH 2009

2008/240 R v MARCUS RICHARD EINFELD

REMARKS ON SENTENCE 1 HIS HONOUR: On 31 October 2008 Marcus Richard Einfeld pleaded guilty before me to two charges, namely that:- 1. On 7 August 2006 at Sydney in the State of New South Wales in the hearing of R v Marcus Einfeld before the Downing Centre Local Court (he) made a false statement on oath knowing the statement to be false concerning a matter material to the proceedings namely that he was not the driver of vehicle AJR-16F on 8 January 2006 when a traffic offence was committed. 2. On or about 23 August 2006 at Sydney in the State of New South Wales (he) did make a false statement with intent thereby to pervert the course of justice. 2 The first charge was a charge of perjury under s 327 of the Crimes Act for which the maximum penalty is imprisonment for 10 years. The second charge was a charge of perverting the course of justice under s 319 of the Crimes Act for which the maximum penalty is imprisonment for 14 years. There is no standard non-parole period for either offence. 3 A sentence hearing was conducted over three days on 25, 26 and 27 February 2009. The evidence adduced in the sentence hearing on behalf of the Crown consisted of a statement of the facts of the offences, a statement made by Mr Einfeld dated 23 August 2006, a criminal history of Mr Einfeld and a traffic record report relating to him and a pre-sentence report dated 19 February 2009 prepared by an officer of the Probation and Parole Service. The criminal history shows that Mr Einfeld had no previous criminal convictions. However, the traffic record report showed a number of traffic offences. 4 The documentary evidence adduced in the sentence hearing on behalf of Mr Einfeld consisted of medical reports, references, summaries of reports in the media about Mr Einfeld from August 2006 to the present and copies of some newspaper reports and articles about Mr Einfeld, statistics of sentences for the offences of perjury and perverting the course of justice, two publications described as the Toomelah Report and the Toomelah Review, a bundle of correspondence between the New South Wales Bar Association and the New South Wales Attorney General and Mr Einfeld, a report by a psychologist, an email of 28 October 2008 from an officer of the Director of Public Prosecutions to Mr Einfeld's counsel and a report by an organisation called Australian Legal Resources International. 5 A lady named Madeleine McGrady gave oral evidence in Mr Einfeld's case. A psychiatrist Dr Jonathan Phillips and a general medical practitioner Dr Robert Joseph Muller, who had made reports which were admitted into evidence in Mr Einfeld's case, were required by the Crown to attend for cross-examination and each of them gave oral evidence in examination in chief, in cross-examination and in re-examination. Mr Einfeld himself did not give evidence at the sentence hearing.