District Court New South Wales Medium Neutral Citation: R v RG [2015] NSWDC 221 Hearing dates: 10 July 2015 Date of orders: 10 July 2015 Decision date: 10 July 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 3 years and a head sentence of 4 years Catchwords: CRIMINAL LAW – Sentence – Conspiring to pervert the course of justice Category: Sentence Parties: The Crown RG Representation: Counsel: G Tabuteau – Crown J Hickleton - Offender Solicitors: Director of Public Prosecutions Gregory J Goold Solicitor File Number(s): 2010/274697 Publication restriction: There is to be no publication of the name of the offender or of any material which may tend to identify the offender SENTENCE 1. HIS HONOUR: The first half of 2009 there were six serious armed robberies committed by a gang of armed men. Cash in transit armoured trucks were targeted and a large sum of money was stolen. The accused was charged with those robberies and stood trial with a number of other co-accused in 2012. After a lengthy trial he and his co-offenders were found not guilty of all charges. However in the lead up to that trial he committed the offence which I must now sentence him, conspiring to pervert the course of justice. That offence came about this way. 2. In late 2009 a significant drug dealer named Mohammed El Ahmed was arrested. Police found a large quantity of drugs, firearms and even plastic explosives in his possession. Soon after his arrest Mr El Ahmed began co-operating with the police. Part of his co-operation was telling them what he knew about the armed robberies. Over the course of the next few months he made a number of statements implicating Mr G in the armed robberies and indicated his willingness to give evidence against the accused. These statements were served on Mr G who was then in custody bail refused at Goulburn gaol. 3. What followed thereafter was a series of telephone calls made by the accused in which he agreed with three other people that Mohammed El Ahmed would be threatened in an attempt to have him alter the evidence that he was proposing to give or in the alternative to not give evidence at all. These telephone calls were recorded, as are all telephone calls made by prisoners from custody. 4. Mr G, fully conscious that the authorities were at the very least recording his conversations if not monitoring them communicated with three other men in a way which attempted to disguise what he truly wished to say. Despite that there was clear agreement between Mr G and the people to whom he was speaking that the offence of perverting the course of justice would be committed. Thus, although Mr G repeatedly said that Mr El Ahmed was not to be threatened it is clear that is precisely what he intended. His suggestion that Mr El Ahmed should be told that if he did not change his evidence or agree not to give evidence that they would no longer be friends was intended to suggest, and was understood to suggest, that Mr El Ahmed should be threatened and threatened he was. 5. Mr El Ahmed had been given a telephone by his brother in law for use in communicating with Mr G's associates. Police lawfully intercepted and recorded the telephone calls made to that mobile phone. Subtle threats were made to Mr El Ahmed until a very unsubtle threat was made against his sister. Mr G told Paul Geeves to tell Mr El Ahmed that if he did not do what they wanted then the Assyrians would go and see his sister. The telephone intercepts recorded the conversation between Mr Geeves and Mr El Ahmed when that threat was conveyed. The reaction of Mr El Ahmed, even allowing for the circumstances that he knew the conversation was recorded, spoke eloquently of his understanding of the information which was being conveyed to him. 6. At the armed robbery trial in 2012 the offender gave evidence as to what was meant by a suggestion that the Assyrians would visit Mr El Ahmed's sister. Unfortunately for him, but fortunately for the course of justice, he was later recorded where he told someone that that was a story which he had "made." Although he denied it in this trial I am satisfied that what he meant was that it was a story which he had fabricated. 7. Despite all these threats made subtly but repeatedly to Mr El Ahmed, he did give evidence in the 2012 trial in accordance with statements he had made to police. Thus the object of the conspiracy was never achieved but that is not to suggest that the offence of conspiring to pervert the course of justice was anything other than a very serious offence indeed. 8. Of course it is an offence to use improper means to get someone to tell the truth in court or not to lie in court but it is a more serious offence to use improper means in an attempt to get someone to say something in court which is not believed to be true. I am satisfied beyond reasonable doubt that the object of the conspiracy was, in two particular areas, to get Mr El Ahmed to say things in court which Mr G believed to be false. This is not in any way to call into question the offender's acquittal on the armed robbery charges. He is fully entitled to be treated for all purposes as being not guilty of those charges, (a subject I will return to) but that does not mean that everything he said while giving evidence in the 2012 trial should be treated as though it were true. I am satisfied beyond reasonable doubt that when Mr El Ahmed was told that he should make a statement to the effect that he gave the offender a BMW key to hold for him he was being asked to say something which the offender believed to be untrue. I am also satisfied beyond reasonable doubt that when Mr El Ahmed was told that he should accept responsibilities for the robberies Mr G did not believe that Mr El Ahmed had done those robberies. This offence is thus made more serious by it being the intention of Mr G that in those two areas Mr El Ahmed would give evidence which Mr G did not believe to be true. 9. On the other hand there is a matter which points the other way. Let me return to the topic of Mr G's acquittal. I will treat him, as I understand I must, as a person who was in gaol facing trial for offences and who was not guilty of those offences. This offence would be much more serious of course if Mr G's intention was to obtain acquittals on charges where he was guilty of those charges. 10. The offender's brother LG, Paul Geeves and Lance Farrell also stood trial. Mr Farrell was found not guilty but LG and Paul Geeves were found guilty and sentenced by Acting Judge Phegan. In Mr Geeves's case his Honour imposed a suspended sentence of imprisonment for 18 months. In LG's case his Honour imposed a sentence of imprisonment of three years with a non-parole period of two years three months. The principles of parity of course apply. The offender should not have any justifiable sense of grievance when he compares the sentence imposed on him with the sentence imposed upon his brother and Mr Geeves. Of course I will have regard to the sentences imposed on those two other offenders, but I must also give due recognition to the significant difference between the cases dealt with by Acting Judge Phegan and the case I am dealing with today. There were significant differences, in particular concerning the subjective features of Mr Geeves which his Honour outlined and the objective criminality of LG. 11. Any offence of conspiracy to pervert the course of justice is a serious one. Civilised society depends on justice being done. If justice is not done then society is harmed. The object of this conspiracy was to undermine the criminal justice system by having Mr El Ahmed say things in evidence which Mr G did not believe to be true in an attempt to secure his acquittal. It is not a mitigating feature that the conspiracy failed. It would have been more serious offending if it had succeeded and it is important to understand that the offence of conspiracy where criminals reach agreements to perform crimes is, other things being equal, more serious than an offender simply determining by himself that he will attempt to commit a crime. 12. Mr G was born in Sydney in 1986. He grew up in Marrickville with his brother L, who I have mentioned, and his mother. His father was from Africa and his mother is of Greek/Irish descent. His father left the family when Mr G was very young and he has only seen him sporadically since then. He has not in fact seen his father since he was 18 years of age. 13. Mr G was interviewed by a psychologist. He described to the psychologist a mainly stable home environment during his formative years. He had a close relationship with his maternal grandparents, particularly his grandfather. One particular blot in the offender's upbringing concerned the circumstance that when he was quite young, indeed at Year 1 at school he was sexually assaulted by a friend's stepfather. The abuse continued for a couple of years. It was from that moment that the offender has identified that he gets angry very easily. 14. Whether this was the cause of behavioural difficulties that he had as a child or not is impossible to say. What has happened however is that from a very young age the offender has been getting into trouble. He was in juvenile detention and has spent a great deal of his adult life in custody. He continues to have the support of his mother. 15. In contrast to almost everyone that appears for sentence in these courts he does not have a drug problem, nor an alcohol problem. At one stage he did drink heavily and consumed cannabis but was able to give up both of those with no trouble at all. He was in good physical health whilst in custody. 16. The offender does have a significant criminal history. As I mentioned, it began at a young age and there are a number of serious offences recorded on it. He went to gaol for armed robbery in 2005, for reckless wounding in 2010 and for possessing an unauthorised prohibited firearm in 2013. There are also a number of other offences dealt with in the Local Court which have resulted in sentences of imprisonment. However, clearly the most significant matter on his criminal history relates to an offence of shooting at with intent to murder. He was sentenced on that matter quite recently, at the same time as being sentenced for possessing an unauthorised prohibited firearm. The overall sentence imposed by Judge Hock means that he is currently serving a sentence consisting of a non-parole period of 16 and a half years with a head sentence of 22 years. 17. The difficulties of sentencing someone on a less serious offence while that person is serving a lengthy sentence for a much more serious offence are well known. Judge Hock allowed a period of eligibility for parole of five and a half years. However, any sentence I impose must commence at the very latest at the expiry of the non-parole period set by her Honour and I am not allowed to extend the head sentence which I will impose beyond that which is otherwise appropriate in order to preserve that length of eligibility for parole. 18. The principle of totality applies too. I will give effect to that principle by commencing the sentence I will shortly announce before the expiry of the offender's existing effective non-parole period. 19. There is another matter which I should refer to which affects the commencement date of the sentence I will shortly announce. It seems that Mr G spent a year in custody where he was bail refused for this offence as well as being bail refused on the armed robbery charges. While acquittal after spending time in custody bail refused does not give someone credit which can be called upon when sentenced for future offending,( at least that is the case in New South Wales,) that is not the situation here. I can see no reason in principle why I should not take into account that one year of pre-sentence custody and in every reason of fairness why I should. So taking into account pre-sentence custody and the principle of totality I will start the sentence 18 months before the expiry of his non-parole period. 20. A matter of some importance in choosing the length of the sentence concerns Mr G's conditions of custody. At present and for some considerable time his conditions of custody have been more onerous than they would have been if he had been part of the general prison population. He is, for example, in his cell for 23 hours each day. Of course there is no guarantee that that will continue to be the case, especially as Mr G faces a very long time in custody and it seems that Mr G's custodial situation is at least partly a response to his own conduct. I will take into account that there is a risk that the offender will spend some or all of his sentence in conditions of custody which are harsher than those of the general prison population in deciding the length of the sentence to impose. 21. I sentence Mr G to imprisonment as follows: I impose a non-parole period of three years and a head sentence of four years to commence on 15 May 2028. Thus the non-parole period will expire on 14 May 2031. To make matters clear to Mr G this means that as a result of this offence Mr G's minimum time in custody has been increased by 18 months. 22. ********** 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. Decision last updated: 30 September 2015