Citation: Director of Public Prosecutions v Paluzzano [2012] NSWLC 13
Court: Local Court of NSW
Date: 6 September 2012
Judge(s): Deputy Chief Magistrate Culver
Background
The offender was a former NSW Member of Parliament for Penrith, who also held positions as Parliamentary Secretary and Assistant Minister for Education and Training. Between August 2006 and June 2007, she signed multiple claim forms under the NSW Parliamentary Remuneration Tribunal's Sitting Day Relief (SDR) scheme. The SDR scheme was designed to fund temporary staff to cover electorate offices on parliamentary sitting days when permanent staff accompanied the MP to Parliament House.
The claim forms she signed were false. In reality, the relief workers named as being at the Penrith electorate office were elsewhere, and the permanent staff said to be at Parliament House had remained at the electorate office. By signing these declarations, the offender enabled additional staff members to receive paid employment under the SDR scheme in circumstances that did not meet the scheme's requirements.
When the matter came before the Independent Commission Against Corruption (ICAC) in April 2010, the offender gave false evidence at a compulsory examination, denying any knowing involvement in falsifying the SDR records. She subsequently retracted those denials at a public ICAC inquiry in May 2010, acknowledging that her earlier evidence had been false.
Legal Issues
- Whether the offender's conduct in signing false SDR claim forms constituted obtaining money by false or misleading statements under s 178BB(1) of the Crimes Act 1900 (NSW)
- Whether the offender's denials at the ICAC compulsory examination constituted knowingly giving false and misleading evidence under s 87(1) of the Independent Commission Against Corruption Act 1988 (NSW)
- What sentence was appropriate, having regard to the nature and number of the offences, the relevant aggravating and mitigating factors, and the competing sentencing objectives of general deterrence, specific deterrence, and rehabilitation
Decision
The court proceeded to sentence on agreed facts across four principal charges (with a fifth taken into account on a Form 1). The three dishonesty charges covered SDR claim forms submitted across three periods in 2006 and 2007. The fourth charge concerned the false evidence given at ICAC's compulsory examination on 16 April 2010, with a related Form 1 offence also taken into account.
The court placed particular weight on the need for general deterrence. The offences involved a serious breach of the public trust reposed in an elected parliamentarian, abuse of a position of public office, and a wilful disregard for the administration of justice through the false ICAC evidence. These features elevated the objective seriousness of the conduct beyond a straightforward dishonesty matter.
Against the offending, the court weighed several subjective factors in the offender's favour. These included the absence of any prior criminal record, the considerable delay between the offences and sentence during which the offender had retrained as a teacher and undergone treatment for depression and anxiety, and the impact on her three children. However, these factors did not displace the need for a custodial sentence.
The court determined that a suspended sentence or intensive correction order would be insufficient to reflect the need for general deterrence. Home detention was identified as the most appropriate option before full-time imprisonment, representing a severe restriction of liberty while still accommodating the mitigating subjective features. The matter was adjourned for a suitability assessment by Probation and Parole. The judgment notes that on appeal to the District Court in February 2013, the sentence was varied to concurrent suspended terms of imprisonment totalling one year and two months.
Orders Made
No orders were made in this decision.
Note: the judgment records that the matter was adjourned to 18 October 2012 for a home detention suitability assessment, pending which the offender was directed to report to Probation and Parole. On appeal, the District Court (Blackmore DCJ) re-sentenced the offender to concurrent terms of imprisonment suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, for a total period of 1 year 2 months.
Key Takeaways
- Crimes of dishonesty committed by a sitting parliamentarian, involving sustained abuse of a publicly funded entitlement scheme, were treated as warranting full custodial consideration, with general deterrence given particular prominence in the sentencing exercise.
- A conviction for knowingly giving false and misleading evidence before ICAC compounds the seriousness of underlying dishonesty offences, as it reflects a further and distinct disregard for the administration of justice.
- Where an offender's subjective circumstances, including first-time custody, rehabilitation, and family impact, do not rise to the level of exceptional circumstances, they may nonetheless bear on the manner in which a custodial sentence is served rather than displacing custody altogether.
- The sentencing court declined to suspend the sentences or impose an intensive correction order, finding those options insufficiently reflective of general deterrence; home detention was identified as the least restrictive custodial option still capable of meeting the sentencing objectives.
- On appeal, the District Court reached a different conclusion and imposed suspended sentences, illustrating that the appropriate weight to be given to general deterrence against mitigating factors in public-office dishonesty cases can be the subject of legitimate appellate disagreement.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 178BB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Independent Commission Against Corruption Act 1988 (NSW), s 87(1)
Cases
- Benitez v R (2006) 160 A Crim R 166
- Carruthers v R [2007] NSWCCA 276
- DPP v Harb [2007] NSWLC 26
- DPP v Kostakidis [2010] NSWLC 20
- DPP v Mourched [2010] NSWLC 2
- Independent Commission Against Corruption v Karkowski [2012] NSWLC 6
- Muldrock v The Queen (2011) 244 CLR 120
- R v Aristodemou (NSWCCA, 30 June 1994, unreported)
- R v Borkowski [2009] NSWCCA 102
- R v Doan (2000) 50 NSWLR 115
- R v Engert (1995) 84 A Crim R 67
- R v Harmouche [2005] NSWCCA 398
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Kennedy [2000] NSWCCA 527
- R v Myers (NSWCCA, 13 February 1990, unreported)
- R v Phillip William Smith [2011] NSWDC 38
- R v Purcell [2010] NSWDC 98
- R v Todd [1982] 2 NSWLR 517
- R v Wright (1997) 93 A Crim R 48