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53
Court of Criminal Appeal 5 May 2010

EINFELD v REGINA

[2010] NSWCCA 87

Also reported as (2010) 200 A Crim R 1 (2010) 266 ALR 598
Fraud & dishonestyPublic order & justice offences
APPEAL CRIMINAL SENTENCING CONDUCT OF FORMER JUDICIAL OFFICER APPEAL CRIMINAL

Citation: Einfeld v Regina [2010] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 5 May 2010
Judge(s): Basten JA; Hulme J; Latham J (majority: Hulme and Latham JJ; Basten JA dissenting on outcome)

Background

The appellant was a former Federal Court judge and Queen's Counsel who pleaded guilty in the Supreme Court to one count of perjury and one count of perverting the course of justice. Both offences arose from a single speeding camera infringement recorded in January 2006. When summonsed to answer the infringement, the appellant gave false evidence in the Local Court denying he had been driving the vehicle and named another person as the driver. That named person had in fact died several years earlier.

After media inquiries exposed the false nomination, police investigated. The appellant provided a written statement to police containing further false particulars. This statement formed the basis of the perverting the course of justice charge. The perjury count rested on his earlier false oral evidence in the Local Court.

James J in the Supreme Court sentenced the appellant to 21 months imprisonment for perjury and two years and three months imprisonment for perverting the course of justice. The sentences ran partly concurrently, producing a total sentence of three years with a mandatory non-parole period of two years. The appellant sought leave to appeal against the severity of those sentences on nine grounds.

  • Whether fresh evidence established that the appellant suffered from a previously undiagnosed bipolar mood disorder at the time of sentencing, and whether the sentencing judge failed to account for his psychological condition
  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offences by reference to the appellant's status as a former judge and barrister
  • Whether adequate weight was given to extra-curial punishment, including loss of his Queen's Counsel commission and practising certificate, and significant public humiliation
  • Whether the discount for the guilty pleas was inadequate
  • Whether the sentencing judge impermissibly took into account uncharged conduct, contrary to the principle in The Queen v De Simoni [1981] HCA 31
  • Whether accumulating the sentences produced an unjust or crushing aggregate result

Decision

The Court of Criminal Appeal granted leave to appeal but, by majority (Hulme and Latham JJ, Basten JA dissenting), dismissed the appeal.

On the psychological condition ground, the Court held that the fresh evidence tendered on appeal did not establish that the appellant was suffering from a previously undiagnosed bipolar disorder at the time of sentencing. The evidence therefore did not reveal any error in the sentencing judge's treatment of that issue.

On the objective seriousness of the offences, the Court confirmed that the sentencing judge was entitled to treat the appellant's background as a former superior court judge and experienced barrister as a significant aggravating factor. His status and legal expertise meant he fully appreciated the gravity of his conduct, and that awareness made the offences more serious than equivalent conduct by a layperson would have been.

On extra-curial punishment and public humiliation, the Court accepted that a sentencing court may legitimately reduce a sentence to reflect punishment suffered outside the formal criminal process, including the revocation of professional credentials and severe reputational damage. The Court found that James J had properly taken those matters into account and given them appropriate, if not dominant, weight. On the De Simoni ground, the Court rejected the argument that the sentencing judge had impermissibly used uncharged conduct as a circumstance of aggravation. The accumulation of sentences was not found to produce a crushing or disproportionate outcome, and the aggregate non-parole period adequately reflected the need for general deterrence and denunciation. No appealable error was established on any ground.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A former judicial officer's professional status and legal expertise are legitimate and significant aggravating factors in sentencing for perjury and perverting the course of justice, because that status heightens both the culpability of the offender and the harm caused to the administration of justice.
  • Extra-curial consequences, including the revocation of professional credentials and severe public humiliation, can properly be taken into account as mitigating factors in sentencing, though they do not automatically result in a discounted sentence.
  • Fresh psychological evidence adduced on a sentencing appeal will not succeed merely by raising a possible diagnosis; the evidence must affirmatively establish that the relevant condition existed at the time of the original sentencing.
  • Under the principle in The Queen v De Simoni, a sentencing court may take into account uncharged conduct as relevant background context, but must not treat it as a circumstance of aggravation that would have warranted conviction for a more serious offence.
  • In accumulating sentences, the Court of Criminal Appeal will intervene only where the aggregate non-parole period is manifestly excessive or manifestly inadequate; general deterrence and denunciation remain central considerations, and double-counting of factors already reflected in head sentences must be avoided.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 43
- Crimes Act 1900 (NSW), ss 319, 327
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Supreme Court Act 1970 (NSW), s 75A

Key Cases
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Daetz [2003] NSWCCA 216; 139 A Crim R 398
- R v Rivkin [2003] NSWSC 447; Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284
- Kenny v R [2010] NSWCCA 6
- R v Fidow [2004] NSWCCA 172
- Clarke v R [2009] NSWCCA 49
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- House v The King [1936] HCA 40; 55 CLR 499
- Wong v The Queen [2001] HCA 64; 207 CLR 584