R v Cottell[2009] QCA 398

SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  I agree with the reasons of Daubney J and with the order he proposes.

[2]  FRASER JA:  I agree with the reasons of Daubney J and the order proposed by his Honour.

[3]  DAUBNEY J:  On 2 September 2008, an indictment was presented in the District Court at Ipswich charging the applicant with one count of forgery and one count of attempting to pervert the course of justice.  On that same day, the matter was listed for trial during the November 2009 sittings of the District Court.  It would appear, however, that the applicant indicated an intention to plead guilty in the course of the sittings, and on 27 November 2008, she was arraigned, pleaded guilty to the charges and the allocutus was administered.  The matter was then adjourned for sentence on a subsequent date.  The matter was initially listed for sentence in June 2009, and then for a contested sentence in September 2009.  Ultimately, the submissions on sentence were made to the learned sentencing judge on 4 September 2009, and her Honour passed sentence on 9 September 2009.  The applicant was sentenced to 12 months’ imprisonment for the forgery and two years’ imprisonment for the attempt to pervert the course of justice, those sentences to be served concurrently, with five days’ pre-sentence custody declared as time served.  An order was made setting the applicant’s parole release date at 4 May 2010 (i.e. after eight months’ imprisonment).

[4] The applicant has now applied for leave to appeal against the sentence, contending in her application that the sentence was manifestly excessive in all the circumstances.  The applicant, who was represented by counsel at the sentence hearing, represented herself in this application.

[5] The background to the offences is as follows.  From about 1995, the applicant was in a de facto relationship with G.  The relationship ended acrimoniously, but they had a child who was born in 1997.  In May 2005, proceedings were commenced in the Family Court concerning this child of the relationship.  On 20 June 2005, the applicant procured that a domestic violence order be made against G.  On 18 July 2005, this domestic violence order was made final for a two year period.  By that time, G and his new partner had moved to Sydney, and he could not afford to come back to Brisbane to contest the domestic violence order application.  The domestic violence orders were then filed in the Family Court to support the action which the applicant had commenced in that jurisdiction.  The learned sentencing judge noted:

“The basis for the application for the domestic violence order contained a number of false statements, including an accusation that [G] was involved or had organised for you to be assaulted in the King George car park after the Family Court hearing, that he’d seen Dr Troupe, a psychiatrist and she had found him to be violent and a compulsive liar.  (In fact Troupe had never seen [G].)  That an act of violence was witnessed by Mr [C] and [C] was not willing to endorse the version that you gave of that particular incident, and it was disputed that there had been previous violence in the relationship between you and [G].”

[6] The C to whom her Honour was referring was the complainant in respect of the subject forgery.  After her relationship with G, the applicant had a relationship with C.  In late 2006, at a time when the applicant decided that she would be seeking an extension to the domestic violence order, she asked C to sign a declaration in support of that application for extension.  C was overseas at the time, and the applicant emailed him a draft of the statutory declaration which she wanted him to sign.  He advised the applicant that the draft she had sent him was inaccurate and he would not sign it.  Notwithstanding this, the applicant forged C’s signature on the statutory declaration and subsequently filed it in both the Magistrates Court and the Family Court.  The applicant went to the lengths of not only forging C’s signature but also forging the signature of a solicitor, L, as the purported witness of the affidavit and the solicitor’s stamp for placement adjacent to the forged signature on the document.

[7] On 7 January 2007, C, who was still friendly with the applicant, stayed at her house and found a copy of the forged document.  He confronted the applicant about the forgery.  Subsequently, in April 2007, both C and the solicitor L filed affidavits disclaiming the statutory declaration purportedly made by C and identifying the forgeries of their signatures.  The applicant’s response, at least so far as the solicitor was concerned, was to write to him at the end of May 2007.  In this letter, she told the solicitor:

“Secondly, you have to withdraw you[r] statement that you made and give an updated statement to state that you did meet [C] back in Dec 2005 [sic] and witness his signature, this has to be done before the dv court date in 6th July 07 or ... you will be dragged down in [C’s] carry on.”

[8] The reference to December 2005 is clearly a mistaken reference to December 2006, that being the date of the purported statutory declaration.  The letter went on to suggest a “story” which the solicitor could use to explain the requested subsequent recollection of C supposedly signing the statutory declaration in the solicitor’s presence.

[9] In the course of her sentencing remarks, the learned sentencing judge said:

“A neuropsychological report has been tendered on your behalf which indicates that you are unlikely to re-offend in the future in a similar manner.  It also indicates that you are prone to exaggeration, you find it difficult to recognise minor faults in yourself, and indicates that even to the psychologist you were still prepared to lie, or at least fudge the truth in relation to [the solicitor], and independent testing or attempts to independently test you under the personality assessment inventory, indicated that you may not have answered in a completely forthright manner in the report.

The explanation you gave in that report was that there were time problems and that you forged his signature to expedite the paperwork and that you didn’t realise the consequences of your actions.  The neuropsychologist said that you didn’t understand or realise that forging someone’s signature was an offence that could be punished with a prison term. 

I find that a very difficult story to accept because I understand you have done studies in justice studies and, in any event, the order was not due to expire until July of 2007 and the document was sent over to [C] in December of 2006 and filed in early 2007.  So time was well and truly on your side to get an affidavit that [C] was willing to sign.  It seems that you simply wanted the affidavit that you felt should have been tendered rather than the affidavit that [C] was prepared to sign.”

[10]  On the hearing of the present application, the applicant sought to rely on material that was available but not utilised before the sentencing judge.  There was nothing fresh about the material, nor were any circumstances demonstrated to warrant the material being received, and accordingly the Court declined to receive that material. 

[11]  Ultimately, in her oral submissions to this Court, the applicant’s case became a plea for clemency.  She said that she had acted under stress, without thinking, and without thinking of the repercussions.  That consideration was expressly addressed and determined by the learned sentencing judge in the passage to which I have referred above.  The applicant asserted that she would never offend again, that she needed to be released from jail in order to get a job, otherwise she would lose her home. 

[12]  Counsel for the respondent in oral submissions pointed out that, far from being accidental, the conduct of the applicant was deliberate and indeed manipulative.  Counsel pointed to the fact that the applicant had, in fact, added paragraphs to the final version of the forged statement of C, and also pointed to the terms of the letter written to L which not only asked L to withdraw the affidavit disclaiming the forgery but went on to offer L a form of explanation and even threatened L with other information the applicant possessed about L’s practice as a solicitor.

[13]  Cases dealing with these sorts of these offences are, thankfully, relatively few and far between.  Authorities to which reference was made in argument from other Australian jurisdictions were not of particular assistance in the present matter, due principally to the quite different fact situations, but nevertheless highlighted the seriousness with which offences of this nature are treated by the courts.

[14]  It is, for present purposes, sufficient to repeat the observation of Williams JA in R v Harnden,[1] that:

“As has been observed in a number of cases, the offence of attempting to pervert the course of justice, like perjury, is a crime that strikes at the heart of the administration of justice.  That is a circumstance which must be given significant weight when a court is considering the appropriate penalty to impose for such an offence.”

[15]  In Harnden’s case, the sentence of two years’ imprisonment was not regarded as manifestly excessive, noting that this was, in fact, the maximum penalty for the offence at that time.

[16]  The learned sentencing judge in the present case was clearly cognisant of the issues of policy to which I have just referred.  She said:

“You have a good work history and the references speak highly of your work ethic, but these offences strike at the very heart of the justice system.  General deterrence is very important in cases such as this.  The courts need to send a strong message that people who deliberately manipulate the justice system for their own personal gain and then attempt to invite, particularly an officer of the court, to withdraw affidavits to try and escape criminal charges, are dealt with – with condign punishment.”

[17]  For completeness, I observe also the learned sentencing judge found that the forgery was a persistent and calculated offence, which caused great distress to G and C, and that the attempt to pervert the course of justice was also calculated, and a matter which caused enormous stress to L.

[18]  In my view, it has not been demonstrated that the sentence imposed in this case was in any way excessive.  The application for leave to appeal should be dismissed.