Citation: R v Irmak [2019] NSWDC 262
Court: District Court of New South Wales
Date: 18 April 2019
Judge: M L Williams SC DCJ
Background
The offender, Recep Irmak, was the younger brother of Ali Irmak, who had been charged with ten counts of aggravated sexual assault in company under s 61JA of the Crimes Act 1900, each carrying a maximum penalty of life imprisonment. After Ali was refused bail in November 2016, he began communicating with his brother from custody about locating the victim and persuading her to change her evidence.
Ali, while in custody, encountered a fellow inmate who was known to NSW Police and who secretly agreed to cooperate with them. That inmate introduced the offender to an undercover police officer (UCO) posing as someone capable of locating the victim. Over a series of coded telephone calls conducted in Turkish, Ali directed the offender to act as the contact point with the UCO for the purpose of finding the victim and arranging for her to withdraw or alter her evidence.
The offender followed his brother's instructions. He met the UCO in person, provided a note bearing the victim's name, and asked the UCO to obtain photographic proof of contact with her before any payment was discussed. The conspiracy ran from 9 December 2016 to 21 June 2017. The offender pleaded guilty to one count of conspiracy to pervert the course of justice under s 319 of the Crimes Act 1900.
Legal Issues
- What was the objective seriousness of the offending, and where did it fall on the range of offences under s 319?
- What weight should be given to the offender's role as a subordinate acting at a family member's direction?
- Whether the conspiracy's failure to achieve its goal was relevant to the assessment of objective seriousness.
- What discount applied for the utilitarian value of the guilty plea?
- Whether the statistical sentencing range submitted by the defence accurately characterised the appropriate sentence.
- Whether special circumstances existed to justify a non-parole period that departed from the standard ratio.
Decision
The District Court placed the offending firmly in the high range of objective seriousness. The offender engaged others in an attempt to locate and coerce a victim of serious sexual assault, with the clear intention of interfering with her evidence in court proceedings. The court rejected the submission that the offending was well below the mid-level, finding instead that the nature and duration of the conduct, the coded communications designed to conceal the parties' identities, and the involvement of a third party engaged to do the work all pointed to planned and organised criminal activity.
The court confirmed that the failure of an attempt to pervert the course of justice is of far less significance to sentencing than in other attempt offences. Following R v PFC [2011] NSWCCA 117 and R v Marinellis, it is the tendency of the conduct that matters, not whether a miscarriage of justice ultimately resulted. The use of coercive measures and the gravity of the underlying proceedings in which the interference was attempted both aggravated the offence.
The court was unpersuaded by the defence's reliance on family loyalty as meaningful mitigation. Drawing on R v Nguyen (2004) 149 A Crim R 343, the court noted that the criminal justice system warrants no less protection from interference motivated by family ties than from interference motivated by financial gain. No subjective evidence of remorse, rehabilitation prospects, or likelihood of reoffending was placed before the court, so no findings in those respects could be made.
A 15 per cent discount was applied for the utilitarian value of the guilty plea. The court took a starting point of four years' imprisonment before applying that discount, arriving at a sentence of three years and five months. No basis for special circumstances was established, and the standard non-parole period ratio was applied.
Orders Made
- The offender was convicted of conspiracy to pervert the course of justice.
- A sentence of imprisonment of three years and five months was imposed, commencing 20 June 2017 and expiring 19 November 2020.
- A non-parole period of two years and six months was imposed, expiring 19 December 2019.
- The mention date (20 June 2019) and trial date (12 August 2019) relating to the offender were vacated.
Key Takeaways
- The District Court confirmed that the objective seriousness of a conspiracy to pervert the course of justice is assessed by the tendency of the conduct, not by whether the interference actually caused a miscarriage of justice.
- Family loyalty as the motive for attempting to pervert the course of justice attracts limited mitigating weight; the administration of justice warrants robust protection regardless of the reason for the interference.
- Where no subjective evidence of remorse, rehabilitation prospects, or risk of reoffending is placed before the court, no findings favourable to the offender on those matters can be made, even under the lower civil standard applicable in sentencing proceedings.
- A guilty plea attracted a 15 per cent discount for its utilitarian value, consistent with the established approach to the plea discount under the Crimes (Sentencing Procedure) Act 1999.
- Statistical sentencing data submitted by the defence was insufficient to displace an assessment of high objective seriousness where the facts of the case warranted it; statistics inform but do not determine the appropriate sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61JA, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- Glover v R [2015] NSWCCA 293
- Krivosic v R [2017] NSWCCA 167
- Mrish [2000] NSWCCA 17
- R v Giang [2001] NSWCCA 276
- R v Marinellis [2001] NSWCCA 328
- R v Moore [2012] NSWCCA 3
- R v Nguyen (2004) 149 A Crim R 343
- R v PFC [2011] NSWCCA 117
- R v Zreika [2000] NSWCCA 75
- Taylor v R [2007] NSWCCA 99
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Winter v R [2011] NSWCCA