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District Court 11 December 2018

R v Elmir

[2018] NSWDC 516

Fraud & dishonestyPublic order & justice offences
CRIMINAL SENTENCE BREACH OF S9 BOND SUBJECTIVE MATTERS

Citation: R v Elmir [2018] NSWDC 516
Court: District Court of New South Wales
Date: 11 December 2018
Judge(s): King SC DCJ

Background

The offender was charged with a property destruction offence and failed to appear at his Burwood Local Court hearing on 22 December 2016. He was convicted in his absence, and a warrant was issued for his arrest. When he later attended a police station and was arrested, he told police he had genuinely believed his court date was in January 2017.

On 21 February 2017, the offender's legal representative applied to annul the conviction under the Crimes (Appeal and Review) Act 2001. In support of that application, a medical certificate was tendered to the court. The certificate purported to show that the offender had attended the Sans Souci Medical Practice on 22 December 2016 and was diagnosed with gastroenteritis, rendering him unfit for his usual occupation.

Police investigation revealed the certificate was fraudulent. The doctor named on it had not worked at the practice since June 2016 and was in the United Kingdom on the relevant date. The practice confirmed no patient of the offender's name had ever been treated there, and the certificate's format differed markedly from authentic certificates issued by the practice. The annulment application was refused regardless. The offender was subsequently charged with doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900.

  • What sentence was appropriate for a single offence of doing an act with intent to pervert the course of justice, where a fraudulent medical certificate was tendered to a court?
  • What weight should be given to the approximately five months the offender had already spent in custody in relation to this matter?
  • Was a Community Corrections Order an appropriate alternative to a further term of full-time imprisonment, given the time already served?

Decision

King SC DCJ observed that offences which compromise the integrity of court processes are serious and will ordinarily attract full-time imprisonment except in extraordinary circumstances. The offence here struck at the reliability of documents placed before courts: courts must be able to rely on materials tendered to them as genuine.

The offender had a criminal history that was not extensive for his age (36), but it included a range of offences. Importantly, the present offence was committed while the offender was subject to a conditional liberty bond (a section 9 bond), which constituted an aggravating circumstance. The section 9 bond had since expired without the offender being called up on it.

His Honour acknowledged that the offender had already served approximately five months in custody in connection with this matter, from 5 July 2017 to 29 November 2017. Absent that period, the court would have imposed full-time custody. Taking that pre-sentence custody into account, King SC DCJ determined it was more appropriate to impose a Community Corrections Order than to backdate a further period of full-time imprisonment.

The judge noted some doubt about the offender's capacity to comply with the order, given his history with supervision obligations, and expressed that the offender should regard himself as fortunate not to be serving further time in custody.

Orders Made

  • Conviction entered for doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900.
  • Community Corrections Order of one year, commencing 11 December 2018, subject to the following conditions:
  • No offences to be committed during the order.
  • Submission to supervision by a Community Corrections Officer.
  • Completion of 150 hours of community service work.
  • Abstention from prohibited drugs or unprescribed prescription drugs.
  • Residence at a nominated address, with notification to the court registrar of any change of address.
  • Attendance at the Hurstville Community Corrections Office within seven days of sentencing.

Key Takeaways

  • The District Court confirmed that offences undermining the integrity of court processes are treated as serious matters and will ordinarily result in full-time imprisonment, with departure from that position reserved for cases with compelling circumstances.
  • A pre-sentence custody period of approximately five months was sufficient, in the circumstances of this case, to justify substituting a Community Corrections Order for a further term of full-time imprisonment rather than backdating a custodial sentence.
  • Committing an offence while subject to a conditional liberty bond (a section 9 bond) is an aggravating factor under the sentencing framework, even where the bond has since expired without being called up.
  • Tendering a forged medical certificate to support a court application constituted an act with intent to pervert the course of justice, notwithstanding that the application was refused and no actual distortion of the outcome occurred.
  • Under s 319 of the Crimes Act 1900, the maximum penalty for doing an act with intent to pervert the course of justice is 14 years' imprisonment, and no standard non-parole period applies to the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(1A)(b) (destroying property in company by fire), s 319 (doing an act with intent to pervert the course of justice)
- Crimes (Appeal and Review) Act 2001 (NSW), s 4 (application to annul conviction)

Cases cited: No cases were cited in the judgment.