District Court New South Wales Medium Neutral Citation: R v SCOTT, Michael Vincent [2018] NSWDC 290 Hearing dates: 23 February 2018 Decision date: 27 April 2018 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Full time imprisonment. Full details at [50]-[52] Catchwords: CRIME – Sentence – intending to pervert the course of justice – note to witness by the accused on trial for murder intercepted – opportunistic – totality – special circumstances – difficulty of sentencing for lesser offence after sentence for murder Legislation Cited: Crimes Act 1900 Evidence Act 1995 Cases Cited: Church v R [2012] NSWCCA 149 Einfeld v R [2008] NSWCCA 243 Hammoud v R [2000] NSWCCA 540 Marinellis v R [2006] NSWCCA 82 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 194 CLR 610 R v Giang [2001] NSWCCA 276 R v King [2011] NSWCCA 274 R v XX [2009] NSWCCA 44 Scott v R [2017] NSWCCA 296 Taouk (1992) 65 A Crim R 387 Taylor v R [2007] NSWCCA 99 Thomson and Houlton v R (2000) 49 NSWLR 383 Category: Sentence Parties: Regina Michael Vincent Scott Representation: Solicitors: Ms Gauld (Crown) Mr Murray (Offender) File Number(s): 2015/00122115 Publication restriction: Nil Judgment 1. HIS HONOUR: Michael Vincent Scott appears today for sentence having today adhered to his plea of guilty to a charge that he, on the 24th day of March 2015 at Darlinghurst in the State of New South Wales, did an act to wit pass a handwritten note to Crown witness Kaila Louise Houston intending to pervert the course of justice. That adherence to his plea of guilty today followed upon a committal for sentence from the Local Court as far back as 31 October 2015. 2. It seems to me in the context of the matters I am about to outline here that he has pleaded guilty at the first reasonable opportunity and thus he will receive a discount of 25% upon the otherwise appropriate sentence required for this particular offence, to recognise the utilitarian benefit of the plea of guilty that he entered in accordance with the guideline judgment of Thomson and Houlton v R from 1999. 3. This is an offence contrary to s 319 Crimes Act 1900. It carries a maximum penalty of 14 years imprisonment and there is no standard non parole period. The prisoner was born on 31 July 1971, on my very quick calculation, that would mean that he presently is 46 years of age, turning 47 in July this year. 4. At the time of committing this offence the prisoner was not strictly subject to conditional liberty but for one particular matter. It has not been the subject of address and really it is subsumed into the objective facts, but the prisoner was in custody appearing before the Supreme Court in relation to his trial on a charge of murder. He was charged in April 2013 with the murder of a person called Riley Dehn. At the time of the offence the prisoner was in a relationship with Ms Houston. 5. In April 2013 Ms Houston provided police with an induced statement as to the prisoner's involvement in the murder which was served on the defence as part of the Crown brief. During 2013 whilst the prisoner was on remand, he and Ms Houston remained in contact by phone and the prisoner instructing Ms Houston to contact Crown witnesses about changing their evidence, although he has not apparently been charged in relation to those matters. 6. His trial before her Honour Justice Wilson commenced on 10 March 2015 in the Sydney Supreme Court at Darlinghurst. On 19 March 2015 Ms Houston failed to appear, notwithstanding a subpoena being served upon her. She was arrested in relation to her failure to appear after a warrant was issued and on 24 March 2015 following her arrest, she was held in the holding cells at Darlinghurst Court House. 7. The prisoner was being held in the same set of cells. Now I appreciate there has been some remodelling of the Darlinghurst cells, but there is a limit to how much they can be remodelled bearing in mind the character of the surrounding construction. The Darlinghurst cells are an area of Sydney's criminal justice scene that I am particularly familiar with having spent much time down there interviewing clients, getting instructions and the like, through the 1970s when I was a solicitor and on occasions in the early 1980s when I was a barrister briefed by solicitors. There was then unfettered, in effect, access by legal practitioners to that cell area, including, I hasten to say, the cells underneath the respective courts. That has long since changed. 8. At about 11.40am whilst in the company of Corrective Services officers, I have photographs that show me precisely what happened from CCTV footage, the prisoner walked past the cell that was holding Ms Houston. He was observed by the officer, it is also clearly seen on the still photography that is available to me, to hand her a note on paper. She was taken into the court in preparation for giving evidence, the note was seized later in the day, the note says: "To my baby girl I love you heaps at this point in time. This is going to come down to what you say in your evidence. If you say the right things I will beat this trial and I will be home with you and your son soon. I hope you baby love me as much as you say you do so we can be a family again after all this is over. So when you come and visit me I hope soon because I really do love and fucking miss you so very much with all my heart. I love you my beautiful baby girl. Love from great boy." 1. I have a copy of the note. At the moment I have just read from the typewritten version of it prepared in the statement of facts. The original is written on a sheet of paper with lines on it in handwriting by pen. It is undated. 2. Ms Houston gave evidence and remained in Court until the luncheon adjournment. Ms Houston was taken back into the holding cells first. The prisoner was then taken past the witness's cell and she attempted to pass him a note which is intercepted before that could occur. 3. On 10 April 2015 the prisoner was found guilty of the murder charge. He was ultimately sentenced by her Honour Justice Wilson on 29 May 2015 to a sentence of 24 years imprisonment commencing from 6 April 2013 with a non parole period of 18 years imprisonment commencing from the same date. 4. I note for purposes of determining the objective seriousness of the offending, that it clearly was what could be called an "unsophisticated" act by the prisoner with the intention to pervert the course of justice. The character of the note shows that it was not prepared, other than in handwriting, and as I pointed out to the Crown there is no evidence available to me to conclude other than that the prisoner first became aware of Ms Houston being in the cell complex that he was held in before 24 March 2015. 5. The offence thus was an opportunistic one. However the consequences of it need to be taken into account as the Crown has correctly pointed out. The Crown has drawn my attention to the fact that Ms Houston was an important witness. She saw the relevant weapon before the killing of the deceased and was involved in its destruction after the killing. She provided an induced statement to the investigating authority. 6. The invitation to the witness to change her evidence and say "the right things", correctly, had "significant potential" to impact on the court proceedings. The Crown in its supplementary submissions has correctly also, without dispute from the defence, noted that her Honour Justice Wilson in a judgment given during the course of the trial made this observation: "The timing of the advent of the (letter) and how that might have had an impact on the evidence Ms Houston gave is a relevant consideration to that latter feature. Prior to lunch yesterday when it appears this correspondence was discovered (her Honour was also referring to Ms Houston's letter) Ms Houston gave evidence that appeared to be quite compromised by the failure of memory. After lunch when she was aware that the existence of the letters (principally the prisoner's letter) was known, her memory seemed to improve. It is reasonable to infer that the improvement is attributable to her awareness that the authorities were in possession of the accused's letter and were thus aware of his exhortation to her to give evidence in such a way that he could beat the trial". 1. She also pointed out in the same judgment: "Following the decision to admit the evidence of the letters, the parties took the view that Ms Houston was an unfavourable witness and would be so characterised on an application of this Court to declare her as such". 1. The transcript in the trial refers to an application pursuant to s 38 Evidence Act 1995 and discussion about that particular matter after the event, there was cross-examination by the Crown of the complainant concerning the receipt of the letter and the impact that it had on the evidence that she had given after having received the letter. 2. She agreed that the letter had caused her to change her evidence and that she had told three lies on oath to the jury "in an effort to help the accused". Although her response to that proposition is recorded as a word typed as "mm hmm". She did agree directly that she had lied no fewer than three times before the jury and she had done so at the prisoner's request. 3. The Crown has drawn my attention to a subsequent judgment of the Court of Criminal Appeal in respect of the prisoner's appeal against conviction. In the decision of Scott v R [2017] NSWCCA 296, it is recorded: "Houston admitted that on the day that she was giving her evidence in chief she received a letter from the applicant...in the letter the applicant asked Houston to give evidence in a particular way so he could 'beat the trial'. Houston also wrote a letter to (the prisoner) but it was intercepted before she passed it to him. Houston admitted that during her evidence in chief she told deliberate lies in an attempt to assist the applicant as requested in the letter. After lunch when she knew the notes had been discovered Houston changed parts of her evidence. She admitted that she was able to recall the conversations where the applicant told her that he had stabbed the deceased and the second visit to the stormwater drain." 1. The Crown has drawn my attention that the passing of the note caused a number of things to happen. Counsel for the prisoner withdrew after being granted leave. This caused a delay of two and a half days to the murder trial and thus led to a delay in the completion of the evidence of Ms Houston. This is a "significant cost to the State" and of course "significant" inconvenience to the jury. 2. In terms for assessing the objective gravity of the offence with which I am concerned, bearing in mind the maximum penalty of 14 years imprisonment, there are a number of matters to take into account. There is the observation of Button J quoted from the decision of Church [2012] NSWCCA at [23], that an important part of assessing the objective seriousness of such an offence, that is "a public justice offence" is the effect that the offence had on the proceedings before the Court. He made the point that identical lies on oath about a particular factual matter may be "vastly different in seriousness depending upon whether what was at stake was fine for driving whilst disqualified or many years in gaol for murder". 3. I accept the submission of the Crown that what was at stake was a very serious matter indeed. As serious a matter as one can have tried. There is the fact that it was an act done by the prisoner in the course of a murder trial. As it turned out there were a couple of aspects of the offending that need to be taken into account as I have earlier pointed out; the unsophisticated character of it and what appears to me to an obvious lack of planning. The decision of the prisoner to pass the note cannot be determined in point of time in a confident manner, but as I pointed out in the course of submission, the first that the prisoner would have been aware of the opportunity to do what he did was when the witness was in the same cell complex as him and that would appear to be the day that the event occurred. 4. The character of the note, as I pointed out before, handwritten though it was, speaks of a lack of preparation. There are some other features too. It was easily detected, having been seen by the Corrective Services officer, and obviously shown in the CCTV footage. It was the case that the trial was not completed by the lies of Ms Houston standing unchallenged and in fact the reversal of her evidence and the circumstances in which she reversed her evidence no doubt was a significant matter in the outcome, or a contributing factor to the outcome, of the trial. 5. Thus, the course of justice was not in any way perverted or changed, merely the prisoner delayed the inevitable, which delay I have taken into account. The note was passed to Ms Houston I note before she gave evidence. I mention in passing, not that I am conducting an inquiry in relation to the Corrective Services officers or the method of housing people in Darlinghurst, but it seems to me inconceivable that a person who was in custody about to give evidence should be able to be housed in close proximity to the person in respect of whose trial the witness is giving evidence for the Crown. There are a range of considerations there including security and the very circumstances of this particular offending. 6. With regard to the circumstances that unfolded, as I said, what the prisoner did was easily detected and had no adverse effect upon the outcome of the matter so far as the Crown is concerned. The prisoner at the time of the offending, apart from being on trial in relation to the murder charge had a number of prior convictions. A very extensive criminal history indeed, that in the copy that is provided to me runs to 29 pages. Although the length of the record is not necessarily determinative of the seriousness of that record. 7. Justice Wilson dealt with the subjective circumstances of the prisoner, some of which are known to me through the psychiatric report that has been tendered as exhibit 1. Her Honour, in considering the prisoner's personal circumstances, had before her I should say a psychiatric report which has been tendered before me and it would appear from the terms of that report there was little in it that provided any mitigation beyond providing some explanation of the circumstances in which the prisoner came forward. The report has even less salience in these proceedings. 8. Putting beside the detail of the prisoner's history that her Honour recounts in her judgment and I need not dwell upon, the ultimate opinion of the psychiatrist, apart from dealing with matters relating to the upbringing of the prisoner and difficulties with alcohol and illicit substance, was that there was no evidence to suggest that the prisoner ever suffered from a major mental illness and at the time of assessment he was not manifesting any symptoms of major mental illness. The author of the report, Dr Jonathan Adams, noted some history of head injury, perhaps some underlying brain injury, but on the other hand there appears to be nothing in the character of the offending that reflects any lack of capacity for the prisoner to understand what he was doing. 9. In any event the prisoner did not disclose any "concerns with his mental state" during the period leading up to the offence (of murder) thus whilst the psychiatric report may have provided some contextual evidence, it did little else in the sentencing of the prisoner for the crime of murder and does little here, showing no causal connection with any mental disability or mental illness to the offending. 10. As I said, the facts of the matter are self-evidently clear. The prisoner knew exactly what he was doing and understood the benefit of undertaking that task. I note in relation to this matter that apart from the judgment of the Court of Criminal Appeal which I did read some weeks ago on the basis that I was informed that Mr Scott's appeal to the Court of Criminal Appeal was unsuccessful, there is provided in the sentencing proceedings a detailed transcript of the relevant matters surrounding the discovery of the note and the various steps taken to ascertain from the witness evidence of the way in which the note that she received and the note that she gave to the prisoner had come to pass. 11. Counsel for the prisoner has in his submissions concentrated on a few matters. He has submitted to the Court in relation to the matter that one should consider the totality of the criminality. It is correct to say, as it was discussed with both counsel, that the only effect my sentence would have ultimately, assuming that there would be some accumulation in the sentence is to distort the relationship of the final non-parole period with the balance of sentencing imposed by her Honour because having regard to the principle offending and the maximum penalty for that. The sentence for the murder charge would obviously be much greater than the sentence that I am required to impose, notwithstanding the fact that there is a maximum penalty of 14 years for this offence. 12. It was submitted, if I be so bold to say so in a measured way, that I should have regard to a decision of King [2011] NSWCCA 274 as possibly justifying the fixing of a sentence that was "concurrent" with the sentence or the non-parole period at least imposed by her Honour Justice Wilson. Clearly King can be distinguished in a range of ways. In one respect the character of the intention to pervert the course of justice was very different from that with which I am now concerned, with far less serious consequences if the achievement of the end intended had occurred. 13. I appreciate in the context of considering totality principles that there will be circumstances where separate offending may still be considered as appropriate for concurrent sentences. These matters are discussed in a number of decisions of the Court of Criminal Appeal since the High Court judgment in Pearce v R (1998) 194 610 particularly at [45]. I number amongst those judgments, for example Hammoud, from 2000 where the discretionary character of fixing sentences concurrently or accumulatively was discussed and also the very helpful judgment of Justice Hall in XX a decision of the Court of Criminal Appeal from memory in 2009 where his Honour summarised a number of relevant principles concerned with determining the relationship of sentences, one to the other, for different offending. 14. Pearce, of course, made it very clear that in sentencing offenders in relation to different offences, one is required to fix an appropriate sentence for each offence and then have regard to issues of concurrency, accumulation or partial accumulation in the context of the principles that attach to considering the totality of the criminality. Of course I bear in mind that the offending that I am concerned with is entirely separate from the offending for which the prisoner is currently serving a sentence. 15. Ordinarily in the context of, for example sentencing somebody already sentenced for a break, enter and steal, if one was required to impose a sentence for a further offence, for example of armed robbery or breaking, entering and steal, one would usually look to fix a sentence that was concurrent upon any existing non-parole period as a means of reflecting the totality of criminality. I am not saying that is an iron clad rule, but that might be a starting point where one is sentencing after a person who has already been sentenced for other offences where a non-parole period has been fixed. If no non-parole period is fixed one might commence the sentence one is imposing either accumulatively upon the pre existing sentence, depending upon its length, or starting the new sentence part way through the existing sentence or sentences. 16. In this particular matter a relevant issue in the context of the consideration of totality of sentencing and when I am referring to totality of sentencing I am referring to the way in which that concept is discussed in leading authorities such as Mill v R (1988) 166 CLR 59. 17. One of the matters I take into account, as is clear from her Honour's judgment on sentence in relation to the murder matter, is that her Honour obviously was well aware of the offending with which I am concerned. It was not practical for her Honour to deal with the prisoner in relation to this offending. But all the material facts were known to her and it is quite apparent to me in reading her remarks on sentence that in considering relevant matters for sentencing, such as the prospects of rehabilitation of the prisoner, matters of contrition and the like. 18. Her Honour had regard to the fact that the prisoner had attempted to do an act or had in fact completed an act with the intention of perverting the course of justice. Not that I am suggesting that her Honour penalised the prisoner for that, but that was a relevant background matter to the way in which the litigation had been conducted before her, no doubt was at least a consensual matter in respect of the issues that she had to take into account in fixing an appropriate sentence. 19. Thus, as I suggested in passing in the course of our brief discussion with the parties about what was to be done in this matter, there is to be avoided if it is possible, to the extent that it can be done or can be measured, a degree of 'double counting'. However, that having been said, that does not mean that some extension of the non-parole period affixed to it by her Honour should not occur. Bearing in mind, as I have said earlier, that nothing that I can do can affect the balance of sentence ultimately to be served by the prisoner except to effect that aspect adversely to his interests. 20. Her Honour fixed a sentence that comprised a non-parole period that was 75% of the total sentence that her Honour determined appropriate for the offending and I believe that was not interfered with by the Court of Criminal Appeal. Thus, the effect of the sentence that I impose will be to leave the prisoner with a non-parole period that is greater than 75% of the total sentence but there is nothing I can do to change that situation. 21. I accept the plea of guilty as a mitigating factor for the factor of the plea of guilty. I do not believe I can conclude that relatively the prisoner is made out pursuant to s 21A(3) that he is remorseful and taken responsibility for his conduct simply by the plea of guilty. But it must be fairly said, even if it could not be categorised as a "mitigating factor" it is a matter that does evidence some remorse on the part of the prisoner for the offending. What he did at the time was conscious, it was deliberate and it was designed to aid him, albeit unsuccessfully, as was soon discovered. 22. In sentencing the prisoner I am required to have regard to s 21A(2). The Crown submitted that his criminal history constituted a relevant "aggravating factor" under that subsection. However her Honour Justice Wilson did not conclude that his criminal history, as lengthy as it was, involving many offences of violence, was an aggravating factor in sentencing the prisoner for murder. In the absence of any evidence that the prisoner has previously perverted the course of justice in any particular way, I could not conclude that his criminal history is relevantly an aggravating factor pursuant to s 21A(2). 23. Her Honour said that the prisoner's criminal history did not entitle him to any particular leniency and so that is the case in relation to this matter, bearing in mind what the prisoner sought to gain from his conduct. There are no other particular aggravating factors, as I would understand it, that are open to be found on the evidence. 24. I have had close regard to the Crown's submissions but I could not conclude, as I have earlier indicated, this was a planned offence such as to constitute an aggravating factor. In fact I am prepared to find in favour of the prisoner that it was an offence without planning and thus is a relevant mitigating factor. That having been said, there are no other mitigating factors that I can identify. Certainly there is nothing in the background of the prisoner or in the future of the prisoner that would warrant a finding different to the findings made by her Honour. And no particular matter has been brought to my attention as requiring re-examination of the fundamental findings of her Honour in relation to the subjective circumstances of the prisoner. She said in fact that "the prisoner's subjective case was quite slight". And such is the case here. 25. I appreciate what the Crown has put in its written submissions about the need for requirement to give weight to deterrent sentences for people that do acts intending to pervert the course of justice or commit what are called public justice offences. Apart from the cases the Crown cites, particularly on these matters of Taylor [2007] NSWCCA 99, Marienellis [2006] NSWCCA, the reference given to me by the Crown says '3307' but that must be a typographical error, and a case I know well from my days at the bar of Taouk (1992) 65 A Crim R 387, there is also, although not specifically cited by anybody, the case of Einfeld, both at first instance and on appeal. The relevant citation I do not have available to me at the moment. I appreciate of course the offending in question may have been under somewhat different provisions, but it was an offence against the justice system or offences against the justice system committed by the former judge. I appreciate, in one sense, the judge, or the former judge, had to made an example of, hence the character of the sentence imposed upon him. 26. It is correctly to be taken into account the 'purposes of sentencing' pursuant to s 3A of the Act. These include obviously elements of general deterrence, personal deterrence which in the context of the sentence already imposed for the murder conviction is a matter of some academic weight in this particular sentencing exercise, making the prisoner accountable for his conduct, denouncing him and ensuring adequate punishment. 27. But even with the substantial sentence by her Honour I am required to also have regard to the question of the promotion of his rehabilitation although that has lesser weight in this exercise than it does in many other sentencing exercises that the Court is required to undertake. The major matter that weighs in this case of course, is the issue of general deterrence and of course adequate punishment. 28. The Crown provided me with some statistics taken from the Judicial Commission's database which tell me nothing more really than what I already knew, that the bulk of the time the offences are committed pursuant to s 319 there will be a term of imprisonment imposed. In relation to that aspect of the matter when a term of imprisonment is imposed, as it was in 42 cases, the statistics tell me that the range of sentences imposed were between six months and 48 months for all offenders. Of course, the statistics have many deficiencies. The facts of the case are not revealed, the actual plea of guilty or not is not usually revealed, particularly in the statistics I have been provided, the criminal history of the offender, the relationship of the offending to other offences and the jurisdiction in which the relevant events occurred is not included within the statistical information. 29. But it is clear in this matter that a term of imprisonment must be imposed. In my view it should be a term of imprisonment of some substance, but substance in the context of the existing sentences of the prisoner he is subject to. I should also, in passing, note the observations of Justice McClellan, as he then was, in Giang [2001] NSWCCA 276 cited by the Crown from paras [21] and [26]. 30. Obviously if this offence had greater planning, in fact had any real planning and had any prospect of success, which this offence clearly did not, the objective gravity of the offending would be considerably enhanced than arises from the facts of this matter. I have had regard to everything that has been put to me by both parties. There was little disagreement, I must say, in the submissions of Mr Murray with the written submissions of the Crown. Most of the objective facts and the contextual facts were not in dispute and the issue was a matter of degree. The area of 'degree' most pertinent, I would have thought, was the extent to which any sentence I imposed was accumulative upon the non-parole period fixed by her Honour in the sentencing in the Supreme Court and, of course, the length of the sentence itself. 31. Thus, hopefully, having taken all relevant matters into account on the run so to speak, I make the following orders. You do not have to stand up obviously Mr Scott, you do not have stand up it would be absurd for you to be standing up in the room at Kempsey but I have to pronounce the formal orders. 32. In respect of the offence that you have pleaded guilty to, you are convicted. You are sentenced to a term of three years imprisonment. That sentence is to date from 6 April 2030. In respect of that sentence I fix a non parole period of two years. That will commenced on 6 April 2030 and expire on 5 April 2032. 33. In respect of that sentence I fix a balance of sentence of one year which will expire on 5 April 2033. I have made a finding of "special circumstances" notwithstanding the fact that her Honour did not make a finding of special circumstances. It seems to me, quite properly, she formed a view that a balance of sentence in your case of 16 years was sufficient to meet the purposes of parole supervision. That would usually be the case, one would have thought, for a sentence of the length imposed upon you. 34. Here the issue of 'special circumstances', pursuant to s 44 of the Act, may be seen as something of an academic matter, but I bear in mind in sentencing you that I am making my sentence partially accumulative at least upon the non-parole fixed by her Honour which may be a special circumstance. There are no other matters that arise. Had I not found special circumstances the non-parole period for yourself on the sentence I have imposed would have only been three months longer in any event, so it is not a significant distortion to make the finding that I have. ********** Amendments 02 November 2018 - corrected paragraph numbering 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: 02 November 2018