Citation: Director of Public Prosecutions v Hetman [2012] NSWLC 8
Court: Local Court of New South Wales
Date: 25 September 2012
Judge: Judge Graeme Henson, Chief Magistrate
Background
The defendant was a Civil Engineer employed by Railcorp with delegated authority to award contracts up to $30,000. During an ICAC inquiry into corrupt conduct involving the procurement of track construction and maintenance goods and services, he gave false evidence on 17 March 2008, denying allegations across five separate questions. Later that same day, still under oath, he returned to the witness box and admitted his earlier evidence had been deliberately untruthful.
The defendant faced five counts of giving false evidence before the Commission under section 87 of the Independent Commission Against Corruption Act 1988. The agreed facts indicated he had given preferential treatment to a company director and received corrupt payments in return, though no charges were laid in respect of those corrupt dealings.
Charges were not filed until 19 April 2012, more than four years after the false evidence was given and immediately retracted. The prosecution was unable to offer any explanation for this delay. The defendant pleaded guilty to all five counts on 19 June 2012, with the prosecution accepting a plea to one charge for sentencing purposes and placing the remaining four on a Form 1.
Legal Issues
- What weight should be given to the unexplained four-year delay between the offending and the commencement of proceedings?
- What sentence is appropriate for giving false evidence before ICAC, given the principles of general deterrence and denunciation that ordinarily apply to perjury-type offences?
- Whether demonstrated rehabilitation during the period of delay, combined with that delay, justified suspending the execution of an otherwise appropriate term of imprisonment.
- What discount applied to the guilty plea, and what weight should be given to the defendant's offer of assistance to authorities?
Decision
Chief Magistrate Henson accepted that false evidence before ICAC is a serious offence attracting the same sentencing principles as perjury. Citing R v Einfeld and R v Aristodemou, the court affirmed that such conduct strikes at the administration of justice and that general deterrence and denunciation require a custodial sentence unless very special circumstances exist. The defendant's position as a public servant, and the breach of trust involved, were treated as relevant aggravating factors.
On the question of the plea, the court allowed a 25 percent discount for utilitarian value, placed at the upper end of the range because the plea was entered at the first available opportunity after proceedings commenced. A further 10 percent discount was applied for the defendant's assistance to authorities, though at a reduced weight given that the information he offered was already known to ICAC. The court assessed the objective seriousness of the conduct as towards the lower end for this type of offence.
The court found the unexplained four-year delay a significant sentencing consideration. Notwithstanding that delay, a term of imprisonment remained appropriate given the nature of the offending. However, the delay and the defendant's demonstrated rehabilitation during that period were directly relevant to how the sentence would be served. During the intervening years, the defendant had rebuilt his personal and professional life: his marriage had been restored, his children had been raised with his involvement, and he had established a business supporting employees and contractors.
Applying section 12 of the Crimes (Sentencing Procedure) Act 1999, the court suspended the sentence of imprisonment. It reasoned that the purposes of denunciation, general deterrence, and specific deterrence were met through the articulation of the applicable principles and the identification of imprisonment as the likely consequence for this type of offending. Placing the defendant into full-time custody after an unexplained delay of that length, during which he had plainly rehabilitated, would have created a justifiable grievance and served no identifiable community interest.
Orders Made
- The defendant was convicted on one count of giving false evidence before ICAC (with four further counts placed on a Form 1).
- Sentenced to 8 months imprisonment.
- Execution of the sentence suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999, on condition that the defendant enter a good behaviour bond for 8 months and appear before the court if called upon.
Key Takeaways
- Giving false evidence before ICAC is treated as analogous to perjury: general deterrence and denunciation ordinarily require a full custodial sentence absent very special circumstances, regardless of persuasive subjective factors.
- Unexplained and prolonged delay by prosecuting authorities in bringing charges is a significant sentencing consideration, though it does not, by itself, preclude a term of imprisonment.
- Where delay is combined with compelling evidence of rehabilitation achieved during the period of that delay, a sentencing court may properly exercise its discretion to suspend the execution of an otherwise appropriate term of imprisonment.
- A guilty plea entered at the first opportunity after proceedings commence attracts a discount at the upper end of the range (here, 25 percent) consistent with R v Thomson; R v Houlton and R v Borkowski, even where the plea was virtually inevitable given the facts.
- An offer of assistance to authorities can warrant a sentencing discount even where the information provided proved to be corroborative only; the absence of knowledge on the offender's part that the information was already known to authorities preserved its mitigating value, albeit at a reduced weight.
Legislation and Cases Referenced
Legislation
- Independent Commission Against Corruption Act 1988 (NSW), ss 87, 116
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21A(2), 32
Cases
- Attorney General's Application under S.37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Aristodemou (unreported, NSWCCA, 30 June 1994)
- R v Borkowski [2009] NSWCCA 102
- R v Bulliman (unreported, NSWCCA, 25 February 1993)
- R v Einfeld [2009] NSWSC 119
- R v Moon (2000) 117 A Crim R 497
- R v Thomson; R v Houlton [2000] NSWCCA 309
- R v Todd [1982] 2 NSWLR 517
- R v Zamagias [2002] NSWCCA 17