Citation: Director of Public Prosecutions v Matthew Simon Freeman [2011] NSWLC 8
Court: Local Court of New South Wales
Date: 20 April 2011
Judge(s): Magistrate Christopher O'Brien
Background
The offender had previously pleaded guilty to charges arising from a staged robbery at a video store where he worked, during which he and a co-offender conspired to make it appear he was robbed at knifepoint. He subsequently claimed workers compensation on the basis of fabricated post-traumatic stress disorder, receiving $42,506.69 over several years before being caught.
When appearing for sentence on those initial offences in the Local Court in August 2008, the offender tendered four character references, three of which were fabricated. Two of the fake references bore letterheads from Granville Kewpie Soccer Club and JB Hi-Fi. The offender then lodged a severity appeal in the District Court, where the same fabricated references were again placed before the court, and he gave sworn false evidence about one of the referees.
The false evidence was exposed during cross-examination in the District Court appeal, which was then withdrawn and dismissed. Approximately two years later, the Director of Public Prosecutions laid the charges now before the court: one count of perjury under section 327 of the Crimes Act 1900, and six counts of using fabricated false evidence to mislead a judicial tribunal under section 317.
Legal Issues
- What discount should apply for the utilitarian value of the guilty plea, given the delay between charges being laid and the plea being entered?
- What was the objective seriousness of the offending, and how did the purposes of sentencing under section 3A of the Crimes (Sentencing Procedure) Act 1999 apply?
- Whether the sentences for the multiple charges should be served concurrently or cumulatively, and how the totality principle should be applied.
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term.
Decision
The magistrate allowed a 20% discount for the guilty plea, rather than the full 25% sought by the offender. The pleas were not entered until the fifth occasion the matter came before the court, some months after the charges were initially laid. Drawing on the principle in R v Borkowski, the magistrate held that the reason for delay is generally irrelevant: if the plea is not forthcoming promptly, its utilitarian value is reduced.
On objective seriousness, the magistrate treated the offending gravely. The conduct involved a deliberate, calculated attempt to subvert the administration of justice across two separate courts, compounding dishonesty that had already been the subject of criminal proceedings. The magistrate identified general deterrence and denunciation as dominant sentencing considerations, noting that the integrity of judicial proceedings must be protected and that courts depend on honest conduct from those who appear before them.
On accumulation, the magistrate declined to impose wholly concurrent sentences. The offending in the Local Court and the District Court involved discrete acts of criminality, and concurrent sentences would fail to reflect the total criminality of the conduct. The perjury sentence was set with reference to the sentence imposed in R v Einfeld (21 months with a 14-month non-parole period), while acknowledging the limited utility of direct comparison between cases.
The magistrate found special circumstances existed to vary the statutory ratio between the non-parole period and the balance of term, citing partial cumulation, the fact that this would be the offender's first period of full-time custody, and his strong prospects of rehabilitation. The effective total term was two years with a non-parole period of 16 months.
Orders Made
- Sequences 1, 2 and 3 (using fabricated false evidence to mislead a judicial tribunal, s 317): Fixed term of 12 months imprisonment, commencing 20 April 2011 and expiring 19 April 2012.
- Perjury charge (s 327): Non-parole period of 8 months and total term of 16 months, commencing 20 December 2011 and expiring 19 April 2013; eligible for release on parole on 19 August 2012.
- The offender was convicted on each charge.
Key Takeaways
- Fabricating character references for use in sentence proceedings, and giving false sworn evidence on appeal from sentence, were treated as serious offences against the administration of justice warranting full-time custodial sentences.
- A guilty plea entered on the fifth court mention, several months after charges were laid, did not attract the maximum 25% utilitarian discount; the magistrate allowed 20%, consistent with the principle that delayed pleas carry reduced utilitarian value regardless of the reason for the delay.
- Partial cumulation of sentences is appropriate where multiple charges reflect distinct acts of criminality across different proceedings; wholly concurrent sentences would have failed to reflect the total criminality involved.
- Under the totality principle as stated in Pearce v The Queen (1998) 194 CLR 610, the aggregate sentence must adequately reflect all of the offender's criminal conduct without producing a result that is disproportionate.
- Special circumstances justifying a departure from the standard non-parole ratio can be established by a combination of factors, including partial cumulation, first-time full-time custody, and strong rehabilitation prospects.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 317, 327
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Cases:
- Gilson v The Queen (1991) 172 CLR 353
- Pearce v The Queen (1998) 194 CLR 610
- Police v Power [2007] NSWLC 1
- Porter v R [2008] NSWCCA 145
- R v Anthony Aristodemou (unreported, NSWCCA, 30 June 1994)
- R v Borkowski [2009] NSWCCA 102
- R v Bulliman (unreported, NSWCCA, 25 February 1993)
- R v Cahyadi [2007] NSWCCA 1
- R v Craig Chapman (unreported, NSWCCA, 21 May 1998)
- R v Doan (2000) 50 NSWLR 115
- R v Dodd (1991) 57 A Crim R 349
- R v Edwards (1996) 90 A Crim R 510
- R v Einfeld [2009] NSWSC 119
- R v Girard [2004] NSWCCA 170
- R v H (1980) 3 A Crim R 53
- R v Hewitt (unreported, Vic CCA, 7 February 1985)
- Hopley v R [2008] NSWCCA 105
- R v MA [2004] NSWCCA 92
- R v Morris [2008] NSWCCA 115
- R v Nguyen [2006] NSWCCA 369
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Veen v R (No 2) (1988) 164 CLR 465
- Zhi Xiong Chen v R [2011] NSWCCA 85