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District Court 27 April 2018

R v SCOTT, Michael Vincent

[2018] NSWDC 290

Public order & justice offences
CRIME SENTENCE OPPORTUNISTIC TOTALITY SPECIAL CIRCUMSTANCES

Citation: R v SCOTT, Michael Vincent [2018] NSWDC 290
Court: District Court of New South Wales
Date: 27 April 2018
Judge(s): Judge S Norrish QC

Background

The offender was on trial in the Supreme Court for murder when, on 24 March 2015, he passed a handwritten note to a Crown witness who was being held in the same Darlinghurst courthouse cells. The note urged the witness to say "the right things" in her evidence so he could "beat the trial." The offender was 43 years old at the time and had been in custody since April 2013.

The witness was a significant Crown witness. She had seen the weapon before the killing, was involved in its destruction afterwards, and had provided an induced statement to police. The note was intercepted and later became part of the evidence at trial, where the witness admitted she had told three deliberate lies on oath before the jury in response to the note, before changing her evidence once she learned the note had been discovered.

The offender was found guilty of murder on 10 April 2015 and sentenced by Wilson J on 29 May 2015 to 24 years imprisonment with a non-parole period of 18 years, commencing 6 April 2013. He pleaded guilty in the Local Court to the perverting-the-course-of-justice charge in October 2015, and the matter was committed for sentence to the District Court, where it came before Norrish J on 27 April 2018.

  • What was the appropriate sentence for an offence of perverting the course of justice under s 319 of the Crimes Act 1900, taking into account the opportunistic nature of the conduct and its actual impact on the trial?
  • How should the totality principle apply where a new sentence must be imposed on an offender already serving a lengthy sentence for a more serious offence arising from the same factual context?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period shorter than the statutory default of three-quarters of the head sentence.
  • What discount was appropriate for the plea of guilty, and when that plea was entered at the first reasonable opportunity.

Decision

Norrish J characterised the offending as opportunistic rather than premeditated. The offender did not know in advance that the witness would be held in the same cells; the note was handwritten without apparent preparation. However, the offence was not trivial. The witness was central to the Crown case, the note caused her to lie three times on oath before the jury, and Wilson J had observed during the trial that the witness's memory improved markedly once she learned the note had been intercepted. The offending had significant potential to affect the outcome of a murder trial.

The judge applied a 25% discount for the plea of guilty, treating it as entered at the first reasonable opportunity given the circumstances of the committal. The maximum penalty for the offence under s 319 is 14 years imprisonment, and there is no standard non-parole period. Norrish J assessed the offending as below mid-range in objective seriousness, given its opportunistic character, but acknowledged the real and actual impact it had on the proceedings.

The central sentencing difficulty was how to structure a sentence that ran largely after the non-parole period already fixed by Wilson J without creating an unjust or crushing outcome. Norrish J determined that the new sentence should be made partially accumulative on the existing non-parole period, commencing on 6 April 2030, shortly before the expiry of the 18-year non-parole period. The judge found special circumstances under s 44, noting that the accumulation of a new sentence onto an existing lengthy non-parole period could itself constitute a special circumstance justifying a longer parole period, though the practical difference amounted to only three months.

Orders Made

  • The offender was convicted of the offence of doing an act intending to pervert the course of justice (s 319, Crimes Act 1900).
  • Sentenced to 3 years imprisonment, commencing 6 April 2030.
  • Non-parole period of 2 years, commencing 6 April 2030 and expiring 5 April 2032.
  • Balance of sentence of 1 year, expiring 5 April 2033.
  • Special circumstances found under s 44 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • An opportunistic attempt to influence a witness during a murder trial, though lacking sophistication, can still warrant a significant custodial sentence where the conduct had a real and demonstrated impact on the proceedings.
  • The District Court confirmed that partial accumulation of a lesser-offence sentence upon the non-parole period of an existing major sentence is an available and appropriate mechanism for giving effect to the totality principle in complex sentencing scenarios.
  • Where a sentencing court imposes a sentence that commences near the end of an existing non-parole period, the structural effect of that accumulation can itself constitute "special circumstances" justifying a departure from the default non-parole period ratio.
  • A 25% discount for a guilty plea entered at the first reasonable opportunity remained applicable even where there was a significant delay between committal for sentence and the sentencing hearing, provided the delay was not attributable to the offender resiling from the plea.
  • Sentencing for a lesser offence after sentence has already been imposed for a more serious offence arising from the same episode presents distinct complexity, particularly in calibrating accumulation so that the combined effect is proportionate and not crushing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Evidence Act 1995 (NSW), s 38 (unfavourable witnesses)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances)

Cases
- Thomson and Houlton v R (2000) 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- Pearce v R (1998) 194 CLR 610
- Mill v R (1988) 166 CLR 59
- Scott v R [2017] NSWCCA 296 (the offender's unsuccessful appeal against the murder conviction)
- Einfeld v R [2008] NSWCCA 243
- Church v R [2012] NSWCCA 149
- Hammoud v R [2000] NSWCCA 540
- Marinellis v R [2006] NSWCCA 82
- R v Giang [2001] NSWCCA 276
- R v King [2011] NSWCCA 274
- R v XX [2009] NSWCCA 44
- Taouk (1992) 65 A Crim R 387
- Taylor v R [2007] NSWCCA 99