Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Khoury v R [2011] NSWCCA 118
• Hearing dates: 28 March 2011
• Decision date: 27 May 2011
• Before: Simpson J at 1; Davies J at 158; Grove AJ at 159

Decision

(1) Leave to appeal against sentences granted;

(2) Appeal allowed, sentences quashed;

(3) In lieu thereof, the applicant be sentenced as follows:

(i) On the charge of giving false and misleading evidence to an ICAC hearing: imprisonment for a fixed term of 6 months, commencing on 26 March 2010 and expiring on 25 September 2010;

(ii) On the first charge of doing an act with intent to pervert the course of justice: imprisonment for a fixed term of 10 months, commencing on 26 April 2010 and expiring on 25 February 2011;

(iii) On the second charge of doing an act with intent to pervert the course of justice and taking into account the four offences on the Form 1: imprisonment for 22 months, commencing on 26 May 2010, with a non-parole period of 12 months, which will expire on 25 May 2011; the head sentence to expire on 25 March 2012.

(4) Pursuant to s 50 of the Sentencing Procedure Act, I would direct that the applicant be released at the expiration of the non-parole period, on 25 May 2011.

• Catchwords: CRIMINAL LAW - appeal against sentence - plea of guilty - no manifest inadequacy in individual sentences - error in failing to consider delay in prosecution - finding of special circumstances not reflected in aggregate sentence imposed - consideration of sentences imposed on co-offenders - leave granted - appeal allowed - applicant re-sentenced; CRIMINAL LAW - particular offences - offences relating to the administration of justice - two counts perverting the course of justice - giving false and misleading evidence to ICAC - Form 1 offences - applicant a priest and supervisor of community service orders - falsification of records; CRIMINAL LAW - sentence - approach to sentencing process - assessment of objective gravity - two-step process mandated for standard non-parole period offences - erroneous use of language hypothesising notional "mid-range" offence where standard non-parole period does not apply - no error in ultimate assessment of objective gravity; CRIMINAL LAW - appeal - fresh evidence - application of s 6(3) Criminal Appeal Act 1912 - admission of additional evidence in applications for leave to appeal against sentence - medical reports - evidence could have been obtained - inadequacy of legal advice - evidence admitted; CRIMINAL LAW - sentence - purpose of sentence - non-custodial orders - community service orders
• Legislation Cited: Crimes (Administration of Sentences) Act 1999; Crimes (Sentencing Procedure) Act 1999; Crimes Act 1900; Criminal Appeal Act 1912; Independent Commission Against Corruption Act 1988
• Cases Cited: Aouad and El-Zeyat v R [2011] NSWCCA 61; Baudromo [2007] NSWCCA 43; Blundell v R [2008] NSWCCA 63; 70 NSWLR 660; Blundell v R [2008] NSWCCA 92; 184 A Crim R 120; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1; Green v The King [1939] HCA 4; 61 CLR 167; Iglesias v R [2006] NSWCCA 261; JM v R [2008] NSWCCA 254; King v R [2011] NSWCCA 46; Lawless v The Queen [1979] HCA 49; 142 CLR 659; Marinellis v R [2006] NSWCCA 307; Markarian v R [2005] HCA 25; 228 CLR 357; R v Abbott (1984) 17 A Crim R 355; R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417; R v Ashton [2002] NSWCCA 498; 137 A Crim R 73; R v Birks (1990) 19 NSWLR 677; R v Dodd (1991) 57 A Crim R 349; R v Ehrenburg (NSWCCA, 14 December 1990, unreported); R v Einfeld [2009] NSWSC 119; R v Fordham (1997) 98 A Crim R 359; R v Geddes (1936) 36 SR (NSW) 554; R v Georgopolous [2010] NSWCCA 246; R v Goodwin (1990) 51 A Crim R 328; R v Lanham [1970] 2 NSWR 217; R v Many (1990) 51 A Crim R 54; R v Munday [1981] 2 NSWLR 177; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; R v Smith (1987) 44 SASR 587; R v Taouk (1992) 65 A Crim R 387; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; R v Todd (1982) 2 NSWLR 517; R v Way [2004] NSWCCA 131; 60 NSWLR 168; R v Willard [2001] NSWCCA 6; 120 A Crim R 450; Ratten v The Queen [1974] HCA 35; 131 CLR 510; Scullion v R (NSWCCA, 15 July 1992, unreported); Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13; Stumbles v R [2006] NSWCCA 418; Taylor v R [2007] NSWCCA 99; Tourni v R [2010] NSWCCA 317
• Category: Principal judgment
• Parties: Father Elias Khoury (Applicant); Regina (Respondent)
• Representation: Counsel: B Walker SC/R Webb SC/T Iskra (Applicant); P Ingram SC (Respondent); Solicitors: Macquarie Lawyers (Applicant); S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
• File Number(s): 2009/12073

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2010-03-26 00:00:00
• Before: Sorby DCJ
• File Number(s): 2009/12073

Judgment

1 SIMPSON J : The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 26 March 2010 following his pleas of guilty to three counts of offences against the administration of justice. Pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") he asked that four additional offences listed on a Form 1 be taken into account. These offences also related to the administration of justice.

2 The charges to which the applicant pleaded guilty were two counts of doing an act with intent to pervert the course of justice (each of which, pursuant to s 319 of the Crimes Act 1900, carries a maximum penalty of imprisonment for 14 years) and one count of giving false or misleading evidence at a hearing of the Independent Commission Against Corruption ("ICAC") (which, pursuant to s 87(1) of the Independent Commission Against Corruption Act 1988 ("the ICAC Act"), carries a maximum penalty of imprisonment for 5 years).

3 On the Form 1 were two offences of making false statements to an officer of ICAC, and two further offences of giving false and misleading evidence to a hearing of ICAC. If charged separately, these offences carry, respectively, maximum penalties of imprisonment for 1 year (s 80(c) of the ICAC Act) and 5 years (s 87(1) of the ICAC Act).

4 Sorby DCJ sentenced the applicant as follows:

• on the count of giving false and misleading evidence, to imprisonment for a fixed term of 8 months, commencing on 26 March 2010 and expiring on 25 November 2010;

• on the first count of acting with intent to pervert the course of justice, to imprisonment for a fixed term of 14 months, commencing on 26 September 2010 and expiring on 25 November 2011, and therefore accumulated by 6 months on the earlier imposed sentence; and

• on the second such count, and taking into account the Form 1 offences, to a term of imprisonment of 2 years, made up of a non-parole period of 14 months and a balance of term of 10 months, commencing on 26 July 2011, and therefore accumulated by 10 months on the previous sentence. The non-parole period applicable to that sentence will expire on 25 September 2012, the balance of term on 25 July 2013.

5 The aggregate sentence is one of imprisonment for 3 years and 4 months commencing on 26 March 2010, with a non-parole period of 2 years and 6 months, expiring on 25 September 2012, with a balance of term of 10 months, expiring on 25 July 2013.

6 In so sentencing the applicant, Sorby DCJ allowed, by reason of the pleas of guilty, which he found had been entered at the first opportunity, a 25 per cent reduction in the sentence he otherwise would have imposed; pursuant to s 44(2) of the Sentencing Procedure Act, he found special circumstances justifying departure from the proportion between the non-parole period and the head sentence that would otherwise have applied.

7 The offences had their origin in the applicant's involvement in the administration of community service orders made under the Sentencing Procedure Act. By way of preliminary, and in order to permit an appreciation of the facts, it is necessary to begin with a reference to certain provisions concerning sentencing procedures.

8 In s 3A, the Sentencing Procedure Act spells out "the purposes of sentencing" for criminal offences. These include, inter alia , ensuring that an offender is adequately punished for the offence, the promotion of rehabilitation, holding the offender accountable, and denunciation. By s 5(1) a court is enjoined not to sentence an offender to imprisonment unless satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

9 In accordance with that philosophy, the Sentencing Procedure Act goes on to provide for a number of non-custodial options available, within stated limitations, to sentencing judges. These included, at the time the applicant was sentenced, periodic detention, home detention and good behaviour bonds. Importantly for present purposes, they also included community service orders (s 8).

10 Part 7 contains more detailed provisions relevant to the imposition of a community service order. An offender must be assessed as a suitable person for community service work, and a court must be satisfied that arrangements exist in the area in which the offender resides for him or her to perform community service work, and that community service work can be provided in accordance with those arrangements (s 86). Administration of community service orders is assigned, by the Crimes (Administration of Sentences) Act 1999 ("the Administration of Sentences Act") to the Commissioner of Corrective Services, through the Probation and Parole Service. Regulations made under the Administration of Sentences Act contain more detailed provisions.

11 It will be seen that a community service order as an alternative to a sentence of imprisonment is a valuable sentencing option, and one that potentially provides enormous benefits to offenders who otherwise might face a term of full or part-time imprisonment. As its name suggests, the option involves offenders performing work considered to be of value to the community. Necessarily, that involves participation by members of the community, who are prepared to provide work of the necessary kind, and voluntarily undertake to supervise the performance of that work by the offenders. Supervision involves maintaining a record of the hours worked. For this purpose, the Probation and Parole Service provides a form for record of attendance, with provision for the dates and the hours worked. The form requires, against both the starting time and the finishing time, signature by the voluntary (community) supervisor, and by the "worker"; and for the initials of a "CCO (sic - probably CSO) Supervisor". These are referred to as "Time Sheets". It is essential, in order to achieve the purposes of sentencing set out above, that the offender recognise that the order contains both punitive and denunciative, as well as rehabilitative, elements. The integrity of the system and its efficacy depends upon the integrity of all who participate in it. That includes the voluntary, or community, supervisors. If that integrity is not forthcoming, it may be that this valuable (and compassionate) sentencing option will be lost.

The facts

12 An Agreed Statement of Facts was put before the sentencing judge. The statement discloses the following.

13 On 11 July 2005, at Burwood Local Court, Mr John Tourni was sentenced (in respect of his fourth motor vehicle offence) to perform 100 hours of community service. Oversight of the order was assigned to the Bankstown Probation and Parole Office where Mr Michael Ishac, a Probation and Parole officer, held the position of Community Service Organiser. He had overall supervision of Mr Tourni's community service. Mr Ishac assigned Mr Tourni to the St Nicholas Antiochian Orthodox Church. The commencement date of the order was 8 August 2005.

14 The applicant was the Parish priest at St Nicholas, and undertook the community supervision of Mr Tourni's order.

15 On 16 December 2004, at Sutherland Local Court, Mr Brian Khouzame was sentenced (in respect of an offence of driving whilst disqualified) to perform 200 hours of community service, and (in respect of an offence of breach of a bond) to perform a further 150 hours of community service. After appeal, the total number hours was reduced to 250. Mr Khouzame's order was assigned to the Bankstown Probation and Parole Office and also came under the supervision of Mr Ishac. Mr Ishac also assigned Mr Khouzame's order to the St Nicholas Antiochian Orthodox Church, under the community supervision of the applicant.

16 Neither Mr Tourni nor Mr Khouzame performed any of the community service ordered. By 25 November 2005 an administrative assistant at the Bankstown Probation and Parole Service was beginning to make inquiries about Mr Tourni's non-performance. On 25 December 2005 Mr Tourni was again apprehended and charged with driving offences, driving whilst disqualified and driving an unregistered vehicle. His failure to perform any of the community service previously ordered would, plainly, be a highly relevant factor in the sentencing decision in respect of the most recent offences, which were due to come before the court on 27 February 2006. At about the same time, procedures were being put in place, under s 115 of the Administration of Sentences Act, to seek the revocation of Mr Khouzame's community service order, by reason of his non-compliance. Pursuant to sub-s (3) of s 115, revocation would expose Mr Khouzame to re-sentencing, and, inevitably, a more severe penalty.

17 With the active assistance of Mr Ishac, both men arranged for the applicant to falsify the time sheets with which they were provided for the purpose of verifying the performance of the community service work. Mr Tourni enlisted the help of his mother who, it seems clear, intervened with the applicant. Although it is not specifically so stated in the Statement of Facts, it may be that Mr Khouzame's mother also intervened, to request the applicant to falsify his time sheets. The applicant agreed to do so. He did so in a highly unsophisticated way. Mr Khouzame took his time sheet to the applicant, who completed it and signed for a series of commencement and finishing times purporting to show that Mr Khouzame had performed community service work of 6 or 7 hours on various identified dates. This was false. Mr Khouzame had, at most, worked at the church for half an hour on any given day.

18 Mr Tourni had lost his time sheet. On 22 February the applicant photocopied Mr Khouzame's time sheet, whited out Mr Khouzame's name, and substituted that of Mr Tourni. Over two different days, and using two different pens, the applicant signed the spaces provided for the voluntary supervisor. By these signatures, he purported to confirm that Mr Tourni had performed work during the hours stated - 7 hours on each day mentioned. The confirmation was entirely false. Mr Tourni had attended the Church only for the purpose of having the false confirmation made.

19 On 27 February 2006 Mr Tourni appeared in the Fairfield Local Court in relation to the recent driving offences. Acting on information supplied from the database of the Probation and Parole Service, which, in turn, had been falsified by the entry of the false information from the time sheet, the duty Probation and Parole officer told the court that Mr Tourni had successfully completed his previous community service order. Mr Tourni falsely confirmed that that was the case.

20 Mr Tourni was sentenced to a term of imprisonment of 6 months, but, pursuant to s 12 of the Sentencing Procedure Act, execution of the sentence was suspended. It may reasonably be inferred that the false information provided to the magistrate concerning Mr Tourni's completion of community service work was a significant factor in this outcome, and that, had the true position been known, Mr Tourni would have been facing a significantly more severe penalty, including part or even full-time imprisonment.

21 Mr Khouzame's and Mr Tourni's purported time sheets were both falsified for the explicit purpose of perverting the course of justice; in Mr Tourni's case, to secure a more favourable outcome in respect of the subsequent charges; in Mr Khouzame's case, to subvert the process of enforcing the order made, or seeking revocation of the order. The falsification of the time sheets constituted the two offences of doing an act to pervert the course of justice to which the applicant pleaded guilty.

22 It was expressly acknowledged that the applicant neither sought nor received any financial reward or advantage for his involvement.

23 The activities of Mr Ishac were under the investigation of ICAC. The investigation extended to the role of the applicant and his participation in the administration of the community service orders arrangements. On 14 March 2006 he participated in a recorded interview with officers of ICAC. He gave evidence in a compulsory examination on 20 February 2006. On each occasion he falsely denied any knowledge of or involvement in any wrongdoing associated with the administration of community service orders.

24 On 12 April 2006, when giving evidence in a public inquiry at ICAC, the applicant retracted his evidence, and admitted that the evidence and information he had previously given was false in a number of respects.

25 The false answers he gave in the interview of 14 March constitute the first two offences on the Form 1, of making false statements to officers of ICAC; the false evidence he gave in the compulsory examination constituted the two offences of giving false or misleading evidence at a hearing of ICAC, the third and fourth offences on the Form 1.

Personal circumstances

26 Relatively little information was before the sentencing judge concerning the applicant's personal circumstances. What there was came from a Pre-Sentence Report prepared by an officer of the Probation and Parole Service, and evidence given by the applicant himself. In addition, a large number of personal testimonials were made available and two friends also gave evidence, essentially of character.

27 From that material the following emerges. The applicant was born in March 1948, in Tripoli, Lebanon, to an Orthodox Christian family. He left school at the age of 13 and entered the Antiochian Orthodox Monastery in Tripoli. He was ordained as a Deacon in 1963 and remained in that role in Tripoli until 1974, when, with the majority of his family, he migrated to Australia. For the next eight years he worked as a storeman for a manufacturing company. He married in 1979 and he and his wife have two now adult children. In 1982 he was ordained as the Parish priest at St Nicholas. Until 1996 the parish was geographically very large, extending from Newcastle to Wollongong. From 1996 it encompassed the Canterbury/Bankstown areas. The applicant was heavily involved in the work of the Church, and put in extremely long hours. The author of the Pre-Sentence Report asserted that the applicant was "inducted" as a community service order supervisor some years earlier, and "reinducted/reaccredited" in May 2002. (The source of the information about "induction" and "re-induction" was not disclosed.) Notwithstanding this assertion, the officer accepted that the applicant never fully appreciated his legal obligations with respect to the administration of the community services order scheme.

28 The officer also accepted that the applicant did not appreciate or understand the significance of his circumstances at the time he was interviewed by officers of ICAC, or at the time he gave evidence. He said that by the time of sentencing, the applicant accepted responsibility for his actions.

29 The officer commented on the difficulty he had experienced in obtaining cooperation and information from the applicant (for the preparation of the report), by reason of the applicant's failure adequately to appreciate the significance of the assessment he was seeking to make.

30 The officer otherwise observed in passing that the applicant had acted in response to requests from the mothers of Mr Tourni and Mr Khouzame. He said that the applicant acknowledged that, by this response, he had allowed those requests to take precedence over his obligations as Community Service Order supervisor, but that he considered the infraction insignificant at the time.

31 The applicant's evidence was not very much more informative. He said that the offence had:

"... brought humiliation to myself, to my church, to my parish, to the community I serve, to my family also and since this happened, took place, my wife and my daughter were very stressed because of it."

He assented to a question which suggested that his wife and children could not attend the sentencing hearing because of anxiety.

32 He said that he himself had been very stressed since the ICAC inquiry, so much so that he suffered a heart attack in June 2007, and that he continued to suffer stress, and would like to overcome the mistake he had made.

33 He explained his motivation for committing the original offences, saying that he acted out of compassion, having been begged by the mothers of Mr Tourni and Mr Khouzame to do what he did.

34 He gave some evidence of the extent of his responsibilities in the Parish, and said that these responsibilities extended through the Blue Mountains to Dubbo, north to Newcastle and Forster, and south to Wollongong. He said that he had suffered abuse from some parishioners. He recognised that he was going to feel disgraced. He rejected the proposition that he had not cooperated with the Probation officer preparing the Pre-Sentence Report, and either misunderstood, or was evasive about, a proposition that he had used different pens to falsify the records (implying a level of sophistication and criminality contrary to his claim of naivety or ignorance).

35 Not surprisingly, the two friends who gave evidence were supportive.

36 The testimonials included one from the Primate of the Antiochian Orthodox Church of Australia and New Zealand, who wrote of the heavy responsibilities the applicant had undertaken in the course of his duties. He added:

"Unfortunately due to this desire to help his parishioners, and due to the tremendous needs of the refugees, [the applicant] came to the conclusion that the end justified the means."

37 It is unnecessary to refer to content of the remaining testimonials.

The Remarks on Sentence

38 Sentencing proceedings took place in relation to the applicant, Mr Ishac, Mr Tourni and Mr Khouzame on the same days. However, while Messrs Ishac, Tourni and Khouzame were all sentenced on 27 November 2009, the applicant was not sentenced until 26 March 2010.

39 In sentencing the applicant, Sorby DCJ recounted the facts, drawn from the Statement of Facts to which I have referred. The transcript records that he then said:

"These facts reveal objectively serious offences committed by a man of considerable standing in the general community as a parish priest, and in particular a man of high standing in his own religious community. He was in a position to know clearly the difference between right and wrong and the difference between a falsehood and a truth. The offences strike at the heart of our system of justice and the administration of justice in New South Wales.

The purpose of an appropriate sentence in this class of case is not only to punish the offender but to deter others and make a claim [sic - make it clear] that the commission of these types of offences will normally be visited with serious punishment. General deterrence is therefore a very important aspect in this type of case."

No issue is, or could be, taken with those observations.

40 His Honour then dealt with the evidence of the applicant's personal circumstances. As I have mentioned, this was relatively limited.

41 He noted that the applicant has no prior criminal convictions and that he had pleaded guilty at the first opportunity. He therefore allowed "the full 25 per cent" reduction in sentence on the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.

42 He found that the applicant was unlikely to re-offend, and that his self analysis and reform constituted special circumstances enabling him to vary the ratio stated in s 44(2) of the Sentencing Procedure Act between the non-parole period and the head sentence.

43 He then said:

"Before formulating the appropriate sentence for each offence and the overall sentence I must determine where the offences fall on the range of objective seriousness for each offence."

(This is a clear reference to the regime of sentencing laid down in Pt 4 Div 1A of the Sentencing Procedure Act. It is, however, a regime which applies only to sentences subject to a statutory standard non-parole period. I deal below with the appropriateness, in sentencing for offences that do not come within that regime, to attempt to fit the offence or offences within a range of objective seriousness.)

44 He repeated that the two offences of perverting the course of justice were:

"... very serious, striking as they do at the heart of the judicial system."

45 His Honour said that the role of the applicant was pivotal to the success of the scheme, and that neither Mr Tourni nor Mr Khouzame could, without his involvement, have presented false time sheets to secure the objectives they sought. He said that the magistrates dealing with the two men were entitled to place trust in the signature of the applicant because of his position as a priest and a designated community service order supervisor. (This was not strictly an accurate comment: so far as the evidence goes, no application for revocation of Mr Khouzame's Community Service Order was made, and accordingly, in his case, no magistrate was deceived by the applicant's false attestation. The very purpose of the falsification of Mr Khouzame's time sheet was to avoid the involvement of any magistrate. That his Honour was well aware of this is clear from the preceding paragraph, where he commented that the applicant falsified Mr Tourni's time sheet in the knowledge that a magistrate would rely on it in determining the sentence for the December offences. The slip is of no moment.) His Honour noted that the applicant received no direct benefit, either financially or otherwise, for himself.

46 He held that the offences of perverting the course of justice were "well above" the mid-range of objective seriousness for offences of their type, and that the offence of giving false or misleading evidence to an ICAC hearing fell within the mid-range of objective seriousness.

47 He proceeded to impose the sentences mentioned above.

The application for leave to appeal

48 The notice of grounds of appeal, which was filed on 22 October 2010, raised only one ground of appeal. That was that the sentence:

"... is manifestly excessive and too severe in all the circumstances."

In written submissions of the same date, however, it was sought to expand the ground of appeal to raise the following (which I will treat as separate grounds):

"I His Honour gave insufficient weight as to the effect of the Applicant's pleas [of guilty] given that remorse and contrition were found to be genuine ...;

II His Honour gave insufficient weight, or no weight to the issue of a substantial delay (of about three years and eleven months);

III His Honour gave insufficient weight, or no weight, to the motives of the Applicant in committing the [perverting the course of justice] offences ...;

IV His Honour expressly found in favour of rehabilitation and special circumstances ... However, the structure of the sentence as to its imposition and effect made no adjustment to the NSW Statutory ratio with the non-parole period comprising seventy-five percent and the parole period comprising twenty-five percent;

[Ground IV is intended, as I understand it, to complain that, despite the finding of special circumstances, the aggregate sentence restored the statutory formula and did not reduce the proportion of the overall non-parole period to the overall head sentence. No submissions were directed to this ground.]

V His Honour was in error in concluding that the [perverting the course of justice] offences were well above the mid-range;

VI That the sentence was manifestly excessive in all of the circumstances."

49 The submissions do not identify whether this last contention is made in relation to each of the individual sentences, or to the aggregate of all sentences imposed, taking into account the extent of accumulation. It does appear to be accepted that Ground VI can succeed only if fresh evidence, upon which the applicant seeks to rely, is admitted. I will deal with that below.

50 Before coming to the fresh evidence issues, I will deal with the grounds numbered I-V.

Ground I: the weight given to the pleas of guilty

51 The complaint that insufficient weight was given to the applicant's pleas of guilty cannot be sustained. He was allowed the maximum reduction envisaged in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 in respect of the utilitarian value of the pleas. Sorby DCJ spent a good part of his analysis referring to the applicant's evidence of humiliation and disgrace, and accepted that the applicant, by the time of sentencing, recognised the significance of his offences, and was remorseful. Those matters were plainly properly taken into account. There was no call to specify any additional reduction attributable to the pleas of guilty, and to have done so would itself have constituted error.

Ground II: delay

52 The two offences of perverting the course of justice were committed over a period between 19 February 2006 and 25 February 2006. The offences of making false statements to an officer of ICAC were committed on 14 March 2006. The offences of giving false or misleading evidence at an ICAC hearing were committed on 20 March 2006. The applicant admitted the falsity of the information and evidence he had given on 12 April 2006. Court Attendance Notices were not issued until 24 June 2008. The applicant entered pleas of guilty on 4 August 2009, and was sentenced on 26 March 2010.

53 This chronology certainly suggests some tardiness in the prosecution process, but not only in the prosecution process. There appears in the papers before this Court no explanation for the lengthy delay. Delay in sentencing can be a relevant consideration: R v Todd (1982) 2 NSWLR 517; Blundell v R [2008] NSWCCA 63; 70 NSWLR 660; Blundell v R [2008] NSWCCA 92; 184 A Crim R 120 , but it is necessary that the sentencing judge be in a position to appreciate the reasons for the delay. There was evidence from the applicant that, in June 2007, he had suffered a heart attack, and this, it may be inferred, may have been the explanation for some part of the delay, but there was no evidence to that effect.

54 Counsel for the applicant provided, to the sentencing judge, lengthy and detailed written submissions. These included, in two different sections, references to the delay and its relevance to sentencing. The submissions were couched in somewhat flamboyant language. They attacked ICAC for the delay, but gave no indication of any evidentiary basis for the accusations they made. They were, in my view, hardly calculated to assist the judge in determining the relevance of the delay to the sentences selected.

55 In this respect the sentencing submissions were unenlightening. Notwithstanding that, reference was made to authority supporting the proposition that delay was a relevant sentencing consideration, and I accept, in this case, that it was.

56 The applicant was not a young, and not a very healthy, man. He was 58 years of age when he committed the offences: he was 62 when sentenced. That no attention was paid in the Remarks on Sentence to the delay, even when it had been expressly raised, in my opinion, signifies error in that an important sentencing consideration was overlooked.

57 I would uphold this ground of the application. I will deal with its consequences below.

Ground III: the applicant's motives

58 It was again reiterated that the motives of the applicant did not suggest self-interest or pecuniary benefit. Such evidence of motive as there was came from the applicant's own testimony. He said that he did what he did as "an act of compassion" that "they" (the mothers of Messrs Tourni and Khouzame) had begged him to sign the false time sheets in order to allow the offenders to maintain their employment and therefore their income. He had already given a similar account to the author of the Pre-Sentence Report.

59 Sorby DCJ did not overlook that the applicant stood personally to gain nothing from his offences. (That may be true of the offences of perverting the course of justice; but as was acknowledged, it is not so with respect to the ICAC Act offences, in respect of which he stood to gain much by way of self protection.)

60 In my opinion, it is a clear inference on the evidence that the applicant acted as he did with little or no regard for the law, or the importance of integrity in the operation of the Community Service Orders system. He put the interests of his parishioners before both the interests of the community and his responsibility to the administration of justice. The absence of any motive of self-interest is quite neutral. There is no substance in this ground.

Ground IV: the structure of the sentences

61 As I have mentioned above, no submissions, written or oral, were directed to this ground. That seems to me to have been an oversight.

62 It is correct that the sentencing judge found, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying a reduction in the proportion the non-parole period carries to the head sentence. In respect of the longer of the pervert the course of justice offences (on which he imposed a sentence of 2 years), he reduced what would, on s 44(2) proportions have been a non-parole period of 18 months, to 14 months. In respect of the other two sentences, because he imposed fixed terms, s 44(2) did not apply.

63 However, after the accumulation, the aggregate sentence (3 years and 4 months with a non-parole period of 2 years and 6 months) conforms precisely with s 44(2).

64 Whether this denotes error or not depends upon the purpose the sentencing judge sought to achieve by the finding: see Baudromo [2007] NSWCCA 43 at [32]. The reasons his Honour gave were the unlikelihood of re-offending and the "self-rehabilitation" achieved by the applicant. This, in my view, makes it clear that his Honour intended to afford the applicant the benefit of the finding of special circumstances in a real and practical sense. That is not achieved if the application of the variation is made only internally, to an individual sentence that is subsumed in the overall, or aggregate sentence.

65 On behalf of the Crown it was accepted that these circumstances justify a grant of leave to appeal; however, the Crown put, first, that, notwithstanding the finding, no other sentence is warranted in law (see Criminal Appeal Act 1912, s 6(3); R v Simpson [2001] NSWCCA 534; 53 NSWLR 704), and, alternatively, that any intervention warranted is "particularly limited".

66 In my opinion this ground of appeal ought to be upheld.

Ground V: objective gravity

67 The finding to which objection is here taken concerns the two offences of acting to pervert the course of justice. His Honour found that those offences were "well above the mid-range of objective seriousness for such offences".

68 In respect of the false and misleading evidence counts, he found that they fell within the mid-range of objective seriousness. He does not appear to have made a finding in respect of the false and misleading information offences (they having been dealt with as Form 1 offences), but it may be inferred that, had he done so, it would have been commensurate with the false and misleading evidence charges.

69 The applicant takes issue with the finding that the pervert the course of justice offences were "well above" the mid-range of offences of their type.

70 The express finding by the sentencing judge that the pervert the course of justice offences were "well above the mid-range of objective seriousness for such offences" reflects a practice that has developed and has been sponsored by, the introduction, with effect from February 2003, of Pt 4 Div 1A of the Sentencing Procedure Act, and is reflective of the language in that legislation. Section 54A (which opens Div 1A) prescribes, in respect of certain identified offences, standard non-parole periods. The purpose of a standard non-parole period is explained in sub-s (2) as follows:

"(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division."

71 Assessment of the objective gravity of any offence has traditionally been an essential element of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349. It should not be doubted that any sentencing decision calls for attention to be paid to the objective gravity of the offence: Markarian v R [2005] HCA 25; 228 CLR 357.

72 While the assessment of objective gravity is an essential part of the sentencing process, it would be erroneous to commence with that assessment, select a sentence, and step down, bit by bit, to take account of mitigating circumstances, personal to the offender: Markarian at, for example, [39] and [50]. The process to be undertaken is an "instinctive synthesis" of which objective gravity is an essential, but not the only, element. Built into this process are notions of relative gravity: Way at [77].

73 Offences to which Pt 4 Div 1A, however, call for an additional step to be taken: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [72]. There, this Court said:

"72 It is evident that the sentencing exercise which is now required for Table offences requires a critical focus, not only upon the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified." (bold added)

It is the second part of this process which was introduced by Pt 4 Div 1A, and which is new, but which is not apposite to offences to which Pt 4 Div 1A does not apply.

74 Thus, while an assessment of objective gravity is, in all cases, a necessary aspect of the sentencing determination, it is only in respect of offences that, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, carry a standard non-parole period that an evaluation of where, on a putative or notional scale of objective gravity an offence falls, is necessary. Indeed, it has been held that to make such an assessment with respect to an offence to which that legislation does not apply is to fall into error: R v Georgopolous [2010] NSWCCA 246, per Howie AJ.

75 In Georgopolous , which concerned an offence to which Pt 4 Div 1A did not apply, Howie AJ said:

"30 Because the offence did not carry a standard non-parole period, it was unnecessary for his Honour to embark upon a detailed finding as to where the offence lay in relation to a mid range of objective seriousness for an offence of this type. It is likely to lead to confusion and misinterpretation when the offence does not carry a standard non-parole period.

...

32 Further, it seems to me that the course adopted by the (sic) Conlon DCJ leads to a 'two-step' approach to sentencing by dividing the 'instinctive synthesis' into a decision on the objective seriousness of the offence followed by a consideration of the subjective circumstances of the offender: cf Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [35] to [39]. In a case where a standard non-parole period applies the court is forced by the terms of the legislation to engage in a stepped approach to sentencing involving, as the first step, a consideration of the objective seriousness of the offence followed then by a consideration of the matters in s 21A [of the Sentencing Procedure Act]: see MLP v R [2006] NSWCCA 271; 164 A Crim R 93. But where that legislation does not apply, a court should avoid embarking upon an independent and detailed analysis of objective seriousness ." (bold added)

76 Howie AJ's remarks, particularly the last (emphasised) sentence in [32] ought not to be read as discouraging sentencing judges from undertaking the traditional task of making an evaluation of objective gravity. What they ought to be taken as suggesting is that the introduction of Pt 4 Div 1A has created a statutory encroachment on the otherwise forbidden two-step process frowned upon in Markarian . By reason of s 54B(2), in cases to which that Part applies - and only in cases to which that Part applies - a two-step approach has been mandated, and is inevitable. In my opinion Howie AJ did not intend to say that, in non-standard non-parole period cases, a sentencing judge should avoid analysing objective gravity. So to suggest would run counter to accepted and traditional sentencing procedure.

77 It is hypothesising a notional, or putative, mid-range offence, where the relevant legislative provisions do not call for such a hypothesis, that Howie AJ decreed is contrary to principle. If, contrary to my opinion, Howie AJ did intend to say that, in non-standard non-parole period cases, sentencing judges should avoid making an assessment of objective gravity, I would respectfully disagree.

78 Although this was not the foundation of the argument put on behalf of the applicant, I have come to the view that the finding, using the language of Pt 4 Div 1A, was apt to denote an erroneous approach. That, however, is far from finding that the conclusion that followed was erroneous. In King v R [2011] NSWCCA 46, where a similar finding had been made at first instance, Hall J came to a contrary view; he did this after examination of the whole of the remarks on sentence. I do not perceive Hall J to have held that such a finding could not denote error; the result in King depended upon a close analysis of the approach taken at first instance.

79 In support of the argument, various features sometimes associated with offences of perverting the course of justice were identified - violence, intimidation of witnesses, personal gain. I accept that, where they are present, these are all factors that affect objective gravity, and, of course, that all are absent from the present case.

80 I am not prepared to find that the assessment was not open to the sentencing judge, or that it was wrong. There were two offences of perverting the course of justice committed virtually simultaneously; they were intended to, and did, have the effect of subverting the operation of a very important sentencing option. It is obvious that, if community participants cannot be trusted to exercise the functions and responsibilities (and privileges) conferred upon them with integrity the entire scheme will fail, to the obvious detriment of both the community and offenders who can be given the benefit of a non-custodial penalty.

81 I accept that intention is a significant aspect of the offence, and that there is, in the materials, some suggestion that the applicant did not fully appreciate the ramifications of what he did.

82 In this respect I anticipate some material with which I will deal when I come to the application to adduce fresh evidence. There are, there, suggestions that the applicant was inadequately trained, or inducted, into the scheme. At this stage, it is only necessary to say that the only evidence before the sentencing judge was that contained in the Pre-Sentence Report, that the applicant had, on two separate occasions, been "inducted" or accredited as part of the scheme. Moreover, he gave no evidence that he did not understand what he was doing.

83 I would reject ground V.

Ground VI: manifestly excessive

84 In support of this ground reference was made to a number of decided cases, and to statistics provided by the Judicial Commission of NSW (the limitations of the use of which are well known).

85 Although it was not clearly stated in the written submissions, it appears, from the nature of the submissions, that this ground is solely, or at least primarily, directed at the pervert the course of justice offences. That may be because a sentence of 8 months for giving false and misleading evidence to an ICAC inquiry, could not, by any stretch of the imagination, be considered to be manifestly excessive.

86 In respect of the pervert the course of justice offences, the applicant was sentenced, respectively, to imprisonment for a fixed term of 14 months and imprisonment for 2 years with a non-parole period of 10 months. When the accumulation of 10 months is taken into account, for the two offences the applicant was sentenced to a combined term of imprisonment of 2 years and 10 months, made up of a non-parole period of 2 years and a balance of term of 10 months; that was partially accumulated (by 6 months) on the 8 month sentence for the false and misleading evidence offence. This, it is to be remembered, is in respect of two (almost identical and almost concurrent) offences, and against a statutory maximum penalty of 14 years.

87 The submissions made on behalf of the applicant referred globally to statistics maintained by the Judicial Commission, but these were not provided to the Court. It was put that;

"... in the higher courts fulltime prison was imposed in 47 per cent of cases. Of the 47 per cent of cases attracting fulltime prison, head sentences inclusive of consecutive and non-consecutive terms ranged from 6 months to 54 months [4 years and 6 months]. Non-parole periods ranged from 6 months to 30 months [2 years and 6 months] with the mean at around 12 months."

Since the Crown did not take issue with this short summary, it is appropriate that it be accepted as reflecting what the statistics disclosed.

88 The sentences the subject of the statistics do not appear to reflect the serious view this Court has repeatedly and consistently expressed concerning the gravity of offences of this kind: see R v Taouk (1992) 65 A Crim R 387 at 415; Marinellis v R [2006] NSWCCA 307 at [10]-[11]; Taylor v R [2007] NSWCCA 99 at [39]-[40]. See also R v Einfeld [2009] NSWSC 119, per James J at [183] (upheld on appeal: Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 ).

89 It is worth examining some of the individual cases. The most obvious with which to begin is Einfeld .

90 The offender was a former judge of a superior court. He was charged with, and pleaded guilty to, two offences, one of perjury, and one of doing an act with intent to pervert the course of justice. The perjury charge arose out of evidence the offender had given in a Local Court hearing, where he faced a charge of driving at a speed exceeding the prescribed speed limit. He falsely denied that he had been the driver of the vehicle at the time it was observed (by a speed camera) exceeding the speed limit.

91 The perverting the course of justice charge arose out of his subsequent elaborate and carefully constructed attempts to avoid being charged with perjury, after it was discovered that the evidence he had given was false.

92 The offender was not quite 68 years of age at the time of the offences, retired from the judiciary, and in indifferent health. In sentencing him on the pervert the course of justice offence, James J took into account, inter alia :

• that the offence was "clearly premeditated";

• that the offence involved considerable planning;

• the motive for the offence (self protection);

• that, by reason of the offender's long career in the law, he clearly was in a position to appreciate the significance of his conduct.

93 With respect to that offence, James J imposed a sentence of imprisonment for 2 years and 3 months, made up of a non-parole period of 1 year and 3 months, and a balance of term of 1 year (for completeness, I mention that this sentence was partially accumulated on the sentence imposed in respect of the perjury offence; the overall sentence was of 3 years, with a non-parole period of 2 years, and a balance of term of 1 year.)

94 While the applicant is of an age comparable to that of that offender, the premeditation, planning, motive and that offender's career in the law and consequent appreciation of the significance of his criminality, all distinguish his case from that of the applicant, and operate to the applicant's advantage. On the other hand, it cannot be overlooked that the applicant committed two offences of this kind, as well as the other offences for which he was sentenced.

95 In Marinellis , the offender, who was in custody on remand in respect of serious fraud charges, wrote two letters, one to his wife and one to his girlfriend, in each case urging the intended recipient to contact police officers involved in prosecuting the charges, and offer them bribes. The letters were intercepted by prison officers and did not reach the addressees. He was charged with, and pleaded guilty to, one offence of doing an act with intent to pervert the course of justice; the second offence was taken into account on a Form 1 pursuant to Pt 3 Div 3 of the Sentencing Procedure Act. The sentence imposed was of 3 years and 8 months, with a non-parole period of 2 years and 9 months and a balance of term of 11 months. That sentence was not disturbed on appeal.

96 In Taylor , the offender also was in custody on remand, facing charges arising out of a stabbing. The offender made numerous calls to a potential Crown witness, urging her to give false evidence of her observations of the events the subject of the stabbing charge, which would inculpate another person. He made similar approaches to his mother. He pleaded guilty to two charges of doing an act to pervert the course of justice. On the first, he was sentenced to imprisonment for 3 years and 3 months, made up of a non-parole period of 2 years and 3 months, and a balance of term of 12 months; on the second, he was sentenced to a fixed term of imprisonment of 2 years, to be served wholly concurrently with the first.

97 I would accept that the offences in Marinellis and Taylor were objectively more serious that those of the applicant. So also was the offence in Einfeld , made particularly so by the degree of planning and elaborate preparation, the degree of self interest sought to be protected, and the status of the offender. But in Marinellis and Taylor the greater objective gravity was reflected in both the head sentences and the non-parole periods imposed. And in Einfeld , the aggregate sentence (in respect of only two offences) was only slightly less than that imposed upon the applicant.

98 This survey and analysis of comparable cases persuades me that the individual sentences imposed upon the applicant are not out of line with accepted sentencing practice. The various observations of this Court concerning the need to maintain the integrity of the administration of justice and therefore to deal severely with attempts to pervert it establish, in my opinion, that these sentences were not in themselves manifestly excessive.

99 Nor, in the circumstances, could it possibly be said that the sentence of imprisonment for a fixed term of 8 months in respect of the false or misleading evidence at an ICAC hearing was manifestly excessive.

100 There remains a question whether the degree of accumulation of the sentences resulted in an overall term that is manifestly excessive. I will return to this after I have considered the fresh evidence.

Fresh evidence

101 The application for leave to appeal was listed for hearing on 28 March 2011. By Notice of Motion filed on 23 March 2011 the applicant sought additional orders, including that he be granted leave to rely upon additional evidence. The additional evidence was identified as:

• two psychological reports of Mr Timothy Watson-Munro dated 17 May 2010 and 18 October 2010;

• a psychiatric report of Dr Olaf Nielssen dated 19 October 2010;

• three psychiatric reports of Dr Bruce Westmore dated 18 October 2010, 19 October 2010 and 20 October 2010;

• an affidavit of counsel who had represented the applicant at sentencing sworn on 10 November 2010.

102 The questions to which the proposed fresh evidence are directed concern the level of the applicant's intellectual functioning, and his mental and/or psychological condition. There was no such evidence provided to the sentencing judge. An explanation for its absence was given in counsel's affidavit.

103 The Crown objected to the reception of this evidence on the basis that it does not come within the principles applicable to the admissibility of fresh evidence with respect to applications for leave to appeal against sentence. Since the Court was not in a position to rule upon the application on the date allocated for hearing, the Crown sought and was granted leave to produce its own additional evidence in response, of the same kind (ie psychiatric and/or psychological reports) after the conclusion of the hearing. Since that time the Court has received an affidavit sworn by a solicitor employed by the Director of Public Prosecutions, annexing a report of Dr Susan Pulman, psychologist, dated 18 March 2011, and two reports of Dr Yvonne Skinner, psychiatrist, dated 18 March and 13 April 2011.

The principles applicable to the tender of fresh evidence in applications for leave to appeal against sentence

104 The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals.

105 The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide:

(1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance;

(2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied.

But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved.

106 I say "additional evidence" because a distinction has been drawn between "fresh" evidence and "new" evidence: see Abou-Chabake , per Kirby J, at [63].

107 "Fresh" evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as:

"... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence."

"New" evidence, on the other hand, is evidence that does not qualify as "fresh", either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. The distinction is important in the present case.

108 If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham .

109 It may be thought that, on the definition as stated by Mason J, evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both critera. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms:

"6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed . In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177.

111 The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities: Scullion v R (NSWCCA, 15 July 1992, unreported); JM v R [2008] NSWCCA 254; R v Willard [2001] NSWCCA 6; 120 A Crim R 450; Munday (supra).

112 The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing.

113 Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217.

114 Two classes of case have emerged. I have already referred to cases in which evidence of post sentencing assistance to authorities has not been admitted. However, in other cases, where it has been held that the circumstances existed at the time of sentencing, even if not put before the sentencing judge, the evidence may be admitted. An example is R v Many (1990) 51 A Crim R 54. An extension occurs where there is some evidence of assistance, but subsequent events show that its significance was not fully appreciated: Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13.

115 Another, and increasingly common, category concerns medical evidence. Examples of these are R v Abbott (1984) 17 A Crim R 355; R v Ehrenburg (NSWCCA, 14 December 1990, unreported ); R v Fordham (1997) 98 A Crim R 359; R v Ashton [2002] NSWCCA 498; 137 A Crim R 73; Iglesias v R [2006] NSWCCA 261; Stumbles v R [2006] NSWCCA 418; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1.

116 In Abbott , one relevant consideration was that the applicant had been incompetently represented, with the result that evidence that could have been available as to her psychiatric condition was not presented. Similar arguments were, on the facts, rejected in R v Goodwin (1990) 51 A Crim R 328 and Stumbles .

117 Caution must be exercised in the admission of the evidence. As I have already indicated, in Lanham , it was held that a proper basis for the admission of the evidence must be established. In Ehrenburg , Loveday J, with whom Gleeson CJ agreed, described the case as "most unusual"; Samuels JA, who also agreed, cautioned against allowing sympathy to lead the Court, against its duty to the community, to make an error of principle. In Ashton , Howie J warned that the Court must be careful to maintain a principled approach in dealing with appeals before it, and be scrupulous to ensure that there is a proper basis for receiving evidence of events that occur after sentence where there is no error established in the sentence imposed.

118 One question which has arisen, but not, so far as I am aware, finally decided, concerns the proper identification of the evidence that is said to have been unavailable, or not presented, at the time of sentencing. That was expressed by Basten JA in Einfeld in the following way:

"45 Whether the relevant 'event or circumstance' is the psychological condition, or the diagnosis, is one of the matters which has not been definitively resolved. There are fine distinctions to be drawn, in a practical way, between susceptibility to and suffering from a particular condition, different degrees of a known condition and the development of a syndrome (such as AIDS) from an infection (with HIV).

...

50 ... there is a fine line between a psychiatric condition which existed at the relevant time and a diagnosis which occurred subsequently."

119 In Fordham , Howie AJ (as he then was) referred to a psychological report that had been prepared after sentencing. He held, accordingly, that the report was either fresh or new evidence (and admissible only if proper grounds were established).

120 For myself, I would question the too ready acceptance that a psychological report post dating sentencing, is, because it is prepared after sentencing, fresh or new evidence. The substance of the evidence is not the existence of the report, but the history and opinions expressed in the report concerning the applicant's psychological condition. That may or may not be something of which the offender was (or his legal representative were) aware at the time of sentencing, but it is almost certainly evidence that, in the ordinary course, could with reasonable diligence have been obtained prior to sentencing.

121 That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer ). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton ).

The proposed evidence

122 In his affidavit counsel who represented the applicant at sentencing deposed to having had great difficulty in conferring with the applicant prior to the sentencing proceedings. He expressed the view, in effect, that the applicant was in denial, and refused, or was unable, to confront the reality of the potential sentence. He recounted a conversation with the applicant, in which, counsel said, he suggested to the applicant that the applicant was incapable "of mentally coming to grips with what has occurred to you", and that he may need "medical help". He said that the applicant replied:

"That is ridiculous. I am a priest, I am not mad. I have a lot of work to do and a lot of people depend on me. I don't have time for psychiatrists and I certainly don't think I am mental. I am offended you think that way."

123 Counsel said that he felt somewhat intimidated by this response, which had the effect of deterring him from pursuing the question of "psychiatric assessment and intervention". He added that the applicant kept his wife and adult children out of their conferences, and that the atmosphere generally was "most uncomfortable", and that, on the day of sentencing, the applicant did not allow any member of his family, other than his brother, to accompany him. (This is difficult to reconcile with the applicant's evidence in the proceedings on sentence, elicited by his own counsel, that the applicant's wife and children were unable to attend because of anxiety.)

124 Counsel then said that it did not occur to him to call psychiatric evidence. He said that despite having been warned of the real possibility of a prison sentence, the applicant told nobody that, on the evening sentence was to be imposed, a party had been arranged for his son's 21 st birthday, which he fully expected to attend.

125 I turn now to deal with the various expert reports on which the applicant seeks to place reliance as fresh evidence.

126 Mr Watson-Munro is a consultant forensic psychologist. In his first report, dated 17 May 2010, he noted a number of circumstances, all drawn from the history he took from the applicant, which he considered to be of relevance. They were:

• in June 2007 the applicant suffered a heart attack which he claimed was stress related;

• the applicant had "an extraordinarily onerous workload"; this included a large geographical area, very long hours and demanding and occasionally traumatic duties, including administering the last rites to terminally ill patients;

• the applicant was also involved in other community related work, and assisted the Department of Community Services in difficult family situations;

• the applicant administered Mass, and undertook regular and intensive marriage guidance and counselling;

• the applicant's family members have been traumatised by his current situation, adding to his own significant emotional distress;

• the applicant's mother died in March 2006;

• the ICAC intervention took place on the day after her funeral, and he was interviewed by ICAC officers a week later. In Mr Watson-Munro's opinion, the applicant's grief and depression occasioned by his mother's death had a deleterious impact upon his capacity to deal with ICAC;

• despite the protracted and onerous nature of his workload, the applicant never had more than one clerical assistant at any one time.

All of these are factual matters, of which evidence could have been elicited from the applicant. Indeed, that he suffered a stress-induced heart attack in 2007 was the subject of evidence given by him.

127 Mr Watson-Munro went further, and provided a professional opinion based on this factual background. He expressed the view that the applicant had been suffering from a range of undiagnosed and hence untreated symptoms for a number of years, inclusive of significant anxiety and at times intense reactive depression.

128 In his report of 18 October 2010, following psychometric testing, Mr Watson-Munro described the applicant as "cooperative though somewhat disoriented". He found, by psychometric testing, deteriorating cognitive ability over the years. He described "a prodigious work ethic", involving seven days a week, up to 12 hours per day. He described very poor health, including morbid obesity, congenital coronary disease, and sleep apnoea.

129 Mr Watson-Munro diagnosed an adjustment disorder, related to the "unrelenting nature" of the applicant's work. He diagnosed severe depression and substantial anxiety. Importantly, having regard to the argument now advanced on behalf of the applicant, he found the applicant to be functioning in the low average category of intelligence, a level significantly less than would be expected for a person discharging his duties.

130 Dr Nielssen is a psychiatrist. When he reported, he had available to him both reports of Mr Watson-Munro. He recorded a history similar to that of Mr Watson-Munro. Dr Nielssen was of the view that the applicant's "limited intellectual ability" suggested that he was incapable of performing complex administrative work, and had a reduced understanding of the effect of his conduct. He found no sign of the depression on which Mr Watson-Munro had commented.

131 Dr Westmore added little, but did express the opinion that the applicant's offending behaviour does not arise from an inherent anti-social personality disorder. He thought that factors of relevance included his feelings of compassion for the mothers of Mr Tourni and Mr Khouzame (although this did not extend to others who he admittedly also did not properly supervise). Dr Westmore thought that a degree of naivety may also have been present, and that all these factors played a role in the offending behaviour. He thought that the risk of his re-offending was low to non-existent.

132 Each of these experts took a history which included assertions by the applicant that he had not been properly informed about his obligations in participating in the community service orders arrangements. It will be necessary to consider this below.

Applying those principles to the present case

133 This case does not fit easily into any of the precedents I have discussed. It crosses the boundaries of some of the categories of cases I have discussed.

134 The evidence showed that the applicant made a deliberate, though spontaneous, decision not to obtain the evidence. Although the evidence included evidence of a psychiatric condition (depression and anxiety) the real focus of the argument lay on Mr Watson-Munro's findings concerning the applicant's level of intellectual functioning. That, in my view, provides part of the explanation for his refusal to participate in psychiatric or psychological examination and testing. Also relevant is the less than firm and fearless advice given to him by counsel (who, admirably enough, exposed his own inadequacy in his affidavit). It was not suggested that this inadequacy reached the level of incompetence referred to in Birks and in Abbott . It is, nevertheless, a relevant consideration.

135 I have earlier referred to the question of whether it is the opinion of the experts, or the substance of the condition, that is the subject of the evidence. That is, in the present case, a highly relevant question. If the Fordham approach is to be followed, it would be a simple matter to hold that the reports of the various experts, not having been in existence at sentencing, meet the first limb of the fresh evidence definition. However, such a finding would, in the light of s 6(3), also mean that they cannot establish error in the sentencing process, even in the extended meaning to which I have alluded.

136 In my opinion attention is to be directed, not to the form in which the evidence is presented, but to the substance of the evidence. What is now sought to be put before the Court is evidence of the applicant's psychological and mental (intellectual) condition as at the time of sentencing. Necessarily that takes the form of reports. But the condition, it is clear, is said to have been in existence at sentencing, and, indeed, at the time of the offences. That is the whole point of the evidence. The evidence is therefore not excluded on the basis of s 6(3).

137 By reason of the second limb of the definition of fresh evidence, however, the evidence does not qualify as fresh. It plainly could have been obtained in the exercise of reasonable diligence.

138 In Many , the Court accepted the applicant's explanation for failing to produce evidence of his assistance to authorities as sufficient to justify reception of that evidence on appeal.

139 In the somewhat unusual circumstances of this case, I would conclude that, as a result of the combination of circumstances - the inadequacy of the legal advice given to the applicant, and the strength of the evidence, the evidence ought to be received.

140 That means that the Court must consider the additional evidence also provided by the Crown. Dr Skinner appeared to take issue with the intelligence level assessed by Mr Watson-Munro. This, it seems, was because that assessment showed the intelligence to be lower than would be expected of a person with the applicant's qualifications. She accepted that the applicant might have been functioning at a level above his ability, but proposed that, at the time of Mr Watson-Munro's testing, he might have been affected by anxiety. As I read Dr Skinner's report, she reached this conclusion because she accepted that the applicant was functioning well in performing his complex religious duties and was highly regarded as a counsellor, and that he fluently speaks a number of languages. The difficulty with this reasoning is that the latter observations are all based upon acceptance of the applicant's own report. That was questioned by Dr Nielssen. Dr Skinner thought that the offences could not be explained by intellectual deficit, but might be explained by excessive workload and insufficient time to learn what was expected of him. She thought the reasons for the offending were:

"... multiple factors including his failure to appreciate the serious responsibility of his position as community order supervisor, time pressures due to his heavy workload, his need to feel that he was helping parishioners."

Dr Skinner did reserve the possibility of revising her judgment about the applicant's intellectual capacity if testing by another psychologist confirmed the result of Mr Watson-Munro. However, when that happened, she adhered to the view she had originally expressed.

141 Dr Pulman's results in fact were similar to those of Mr Watson-Munro. She assessed the applicant as functioning within the low average range of intellectual ability, below the level expected given his responsibilities. She thought it likely that his actual abilities had always been well below the level expected of a parish priest.

142 Notwithstanding this opinion, and her express reservation of the possibility of revising her opinion, Dr Skinner, in a subsequent report, maintained the view she had previously expressed. She said that low average to average intellectual functioning would not explain the offences.

143 She repeated that, at around the time of the offences the applicant had functioned effectively as a parish priest, was capably performing complex religious duties, and was highly regarded as a counsellor. In this she continued to rely upon the applicant's self assessment. Her opinion, accordingly, remained unchanged.

144 I would give little weight to these opinions. As I have previously mentioned, the basis for Dr Skinner's opinions was solely information provided to her by the applicant. Dr Skinner can not have known how effectively he was functioning as a parish priest, how capably he was performing his religious duties, or how highly regarded he had been as a counsellor. The foundation for the opinion expressed is quite inadequate. Contrary to her original position, Dr Skinner paid no credence to the findings of Dr Pulman.

145 For my part, I would accept the findings of Dr Pulman, and those of Mr Watson-Munro, Dr Nielssen and Dr Westmore.

146 In my opinion, the applicant's low level intellectual functioning would have been an extremely relevant circumstance had it been made known to the sentencing judge.

147 I mentioned above that there was secondary evidence concerning the extent to which the applicant had been apprised of his obligations as a community supervisor of community justice orders. The evidence is not sufficient to justify a finding that there was, within the system, some failure of communication. Far more relevant, in my opinion, is the incapacity of the applicant to reach an appreciation of obligations with or without instruction.

148 On the basis that two of the pleaded grounds of appeal have been made out, and that the fresh evidence that I would admit establishes error in the sentencing process, I would grant leave to appeal, allow the appeal, and re-sentence the applicant.

149 I could not be satisfied that any of the individual sentences was, even in the light of the additional material, manifestly excessive. Indeed, each individual sentence was lenient. It is in the accumulation of the sentences, and in the failure to translate the finding of special circumstances into the overall sentence, that I consider error is demonstrated.

150 In sentencing, there is another consideration. That concerns the sentences imposed on the various co-offenders.

151 I wish to make it clear that no ground of appeal raised any issue of parity, and this is not a finding of error on that basis. But, in re-sentencing, this Court must have regard to the sentences imposed on the co-offenders. The most relevant of these is, of course, that imposed on Mr Ishac, to which I will come.

152 Mr Tourni faced one count of doing an act with intent to pervert the course of justice, and two of giving false evidence to an ICAC inquiry hearing. On the first count he was, at first instance, sentenced to a term of imprisonment of 20 months, made up of a non-parole period of 12 months and a balance of term of 8 months. On each false evidence charge, he was sentenced to imprisonment for 6 months, to be served concurrently. The pervert the course of justice sentence was specified to be partially accumulated by 4 months, giving an overall sentence of 2 years with a non-parole period of 16 months. After appeal ( Tourni v R [2010] NSWCCA 317), the sentences were adjusted to produce an overall term of 20 months, with a non-parole period of almost 11 months and a balance of term of 9 months.

153 Mr Khouzame pleaded guilty to one charge of doing an act with intent to pervert the course of justice and one of giving false and misleading evidence. He asked that three further offences (presumably of giving false evidence) be taken into account. On the charge of giving false and misleading evidence, he was sentenced to a fixed term of imprisonment for 6 months; on the pervert the course of justice (taking into account the additional offences), he was sentenced to imprisonment for 18 months, made up of a non-parole period of 12 months and a balance of term of 6 months. After accumulation, his overall sentence was a total of 20 months, with a non-parole period of 14 months, and a balance of term of 6 months.

154 Mr Ishac pleaded guilty to three counts, one of doing an act with intent to pervert the course of justice, one of being an accessory to such an offence (which carries the same maximum penalty) and one of giving false evidence to a hearing of ICAC. He asked that four further false evidence offences on a Form 1 be taken into account. On the accessory count he was sentenced to imprisonment for a fixed term of 10 months; on the false evidence charge, to a fixed term of 6 months; and on the pervert the course of justice charge, and taking into account the Form 1 offences, to imprisonment for 22 months, made up of a non-parole period of 12 months and a balance of term of 10 months. Partial accumulation gave an overall sentence of 2 years and 4 months, with a non-parole period of 18 months, and a balance of term of 10 months.

155 It is of some interest that, in Mr Ishac's case, his Honour expressly took into account the delay in bringing the charges. Apart from that, it is impossible to see why Mr Ishac, whose breach of trust was plainly greater than that of the applicant, was treated significantly more leniently. As I have said, parity was not raised as a ground of appeal, and it would be inappropriate to make any direct findings in that respect.

156 Nevertheless, the sentences imposed on Mr Ishac are of considerable relevance, given that this Court must exercise the sentencing discretion afresh. I emphasise that the sentences that I am about to propose are not those that I would consider appropriate if I were approaching this sentencing exercise with a clear slate. The sentences imposed on the co-offenders, and the sentences I propose, are, in my opinion, markedly lenient when one considers the gravity of the offences. But justice must be done in context, and, here, the context includes the sentences imposed on the co-offenders, particularly Mr Ishac.

157 I propose the following orders:

(1) Leave to appeal against sentences granted;

(2) Appeal allowed, sentences quashed;

(3) In lieu thereof, the applicant be sentenced as follows:

(i) On the charge of giving false and misleading evidence to an ICAC hearing: imprisonment for a fixed term of 6 months, commencing on 26 March 2010 and expiring on 25 September 2010;

(ii) On the first charge of doing an act with intent to pervert the course of justice: imprisonment for a fixed term of 10 months, commencing on 26 April 2010 and expiring on 25 February 2011;

(iii) On the second charge of doing an act with intent to pervert the course of justice and taking into account the four offences on the Form 1: imprisonment for 22 months, commencing on 26 May 2010, with a non-parole period of 12 months, which will expire on 25 May 2011; the head sentence to expire on 25 March 2012.

(4) Pursuant to s 50 of the Sentencing Procedure Act, I would direct that the applicant be released at the expiration of the non-parole period, on 25 May 2011.

158 The overall sentence I propose is a head sentence of 2 years with a non-parole period of 1 year and 2 months.

159 DAVIES J : I agree with Simpson J.

160 GROVE AJ : I agree with Simpson J.

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Decision last updated: 31 May 2011