R v Einfeld [2009] NSWSC 119 (20 March 2009)

Last Updated: 23 March 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Einfeld [2009] NSWSC 119


JURISDICTION:


FILE NUMBER(S):
2008/240

HEARING DATE(S):
25-27 February 2009

JUDGMENT DATE:
20 March 2009

PARTIES:
Regina
EINFELD, Marcus Richard

JUDGMENT OF:
James J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
W G Roser SC (Crown)
I M Barker QC / D R Campbell SC (Prisoner)

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions)
Verekers Lawyers



CATCHWORDS:
SENTENCE — perjury — perverting the course of justice

LEGISLATION CITED:
Crimes Act
Crimes (Sentencing Procedure) Act

CATEGORY:
Sentence

CASES CITED:


TEXTS CITED:


DECISION:
For the offence of perjury — sentenced to a non-parole period of imprisonment of one year two months commencing on 20 March 2009 and expiring on 19 May 2010 and a balance of the term of seven months commencing on 20 May 2010 and expiring on 19 December 2010.
For the offence of perverting the course of justice — sentenced to a non-parole period of imprisonment of one year three months commencing on 20 December 2009 and expiring on 19 March 2011 and a balance of the term of one year commencing on 20 March 2011 and expiring on 19 March 2012.
Parole order for release on 19 March 2011.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

JAMES J

FRIDAY 20 MARCH 2009

2008/240 R v MARCUS RICHARD EINFELD

REMARKS ON SENTENCE

1 HIS HONOUR: On 31 October 2008 Marcus Richard Einfeld pleaded guilty before me to two charges, namely that:-

1. On 7 August 2006 at Sydney in the State of New South Wales in the hearing of R v Marcus Einfeld before the Downing Centre Local Court (he) made a false statement on oath knowing the statement to be false concerning a matter material to the proceedings namely that he was not the driver of vehicle AJR-16F on 8 January 2006 when a traffic offence was committed.

2. On or about 23 August 2006 at Sydney in the State of New South Wales (he) did make a false statement with intent thereby to pervert the course of justice.

2 The first charge was a charge of perjury under s 327 of the Crimes Act for which the maximum penalty is imprisonment for 10 years. The second charge was a charge of perverting the course of justice under s 319 of the Crimes Act for which the maximum penalty is imprisonment for 14 years. There is no standard non-parole period for either offence.

3 A sentence hearing was conducted over three days on 25, 26 and 27 February 2009. The evidence adduced in the sentence hearing on behalf of the Crown consisted of a statement of the facts of the offences, a statement made by Mr Einfeld dated 23 August 2006, a criminal history of Mr Einfeld and a traffic record report relating to him and a pre-sentence report dated 19 February 2009 prepared by an officer of the Probation and Parole Service. The criminal history shows that Mr Einfeld had no previous criminal convictions. However, the traffic record report showed a number of traffic offences.

4 The documentary evidence adduced in the sentence hearing on behalf of Mr Einfeld consisted of medical reports, references, summaries of reports in the media about Mr Einfeld from August 2006 to the present and copies of some newspaper reports and articles about Mr Einfeld, statistics of sentences for the offences of perjury and perverting the course of justice, two publications described as the Toomelah Report and the Toomelah Review, a bundle of correspondence between the New South Wales Bar Association and the New South Wales Attorney General and Mr Einfeld, a report by a psychologist, an email of 28 October 2008 from an officer of the Director of Public Prosecutions to Mr Einfeld’s counsel and a report by an organisation called Australian Legal Resources International.

5 A lady named Madeleine McGrady gave oral evidence in Mr Einfeld’s case. A psychiatrist Dr Jonathan Phillips and a general medical practitioner Dr Robert Joseph Muller, who had made reports which were admitted into evidence in Mr Einfeld’s case, were required by the Crown to attend for cross-examination and each of them gave oral evidence in examination in chief, in cross-examination and in re-examination. Mr Einfeld himself did not give evidence at the sentence hearing.

The facts of the offences

6 As I have already indicated, the Crown prepared a statement of what it contended were the facts of the offences. Counsel for Mr Einfeld objected to some parts of the Crown’s statement of facts but only on the grounds that the facts asserted in those parts, although admitted to be true, were not relevant to the sentencing of Mr Einfeld for the offences. At the sentence hearing I made rulings that those parts of the statement of facts which were objected to were relevant and, accordingly, I admitted the statement of facts into evidence in its entirety. I said that I would give further consideration to the question of the relevance of those parts of the statement of facts which had been objected to. Having given the question further consideration I adhere to the rulings I made at the hearing.

7 The Crown’s statement of facts is lengthy. Because of its length I will not set it out in full but will quote some parts of it and I will summarise other parts. I will occasionally incorporate facts which I am satisfied are proved by parts of Mr Einfeld’s statement of 23 August 2006.

8 Paragraph 1 of the statement was in the following terms:-

“Marcus Richard Einfeld was admitted to the NSW Bar in 1963 and was subsequently appointed a Queens Counsel. On 18 December 1986 he was appointed as a Justice of the Federal Court of Australia. Between 1986 and 1990 he was President of the Human Rights and Equal Opportunity Commission. On 16 April 2001, Marcus Richard Einfeld retired from the Federal Court. On his retirement he was appointed to a number of State Supreme Courts as an Acting Justice, including the New South Wales Supreme Court. Also, on his retirement from the Federal Court Marcus Richard Einfeld returned to be one of the leading Queens Counsel in the Australian legal profession.”

9 Mr Einfeld was a friend of Teresa Brennan, an Australian, who was a Professor at the Florida Atlantic University in Florida in the United States of America.

10 In December 2002 Professor Brennan was seriously injured in a motor vehicle accident in Florida. She sustained a serious head injury and was admitted to hospital in a coma and put on life support.

11 On 30 January 2003 Mr David Brennan, a cousin of Professor Brennan, informed Mr Einfeld by email that Professor Brennan had been injured in a motor vehicle accident in December 2002 and was on life support in Florida and that she was very unlikely to recover. On the same day Mr Einfeld sent an email to Mr David Brennan expressing his distress at the news and offering his assistance.

12 On 3 February 2003 Professor Teresa Brennan died as a result of the injuries she had received in the motor vehicle accident. Soon after her death Mr David Brennan telephoned Mr Einfeld and informed him of Professor Brennan’s death.

13 On 23 February 2003 Mr David Brennan sent an email to Mr Einfeld informing him that a funeral service for Professor Brennan would be held in Melbourne. Mr Einfeld responded “I will try to be there”.

14 Paragraph 5 of the Crown’s statement was in the following terms:-

“On Sunday 8 January 2006 Mr Einfeld had a booking for lunch at the Pilu Restaurant, Freshwater, with Ms Vivian Schenker, a friend whom he had known for many years. On that day Mr Einfeld drove from his home in Woollahra to Ms Schenker’s address at ... Cremorne Point. Mr Einfeld was driving his silver Lexus LS400 motor vehicle registered number AJR-16F. From Ms Schenker’s address the pair travelled together in Mr Einfeld’s vehicle to the Pilu Restaurant.”

15 Mr Einfeld and Ms Schenker arrived at the Pilu Restaurant at about 1:23 pm. Records of the restaurant show that Mr Einfeld and Ms Schenker left the restaurant at some time between 3:34 pm and 3:41 pm. Mr Einfeld and Ms Schenker got into Mr Einfeld’s vehicle and Mr Einfeld commenced driving towards Ms Schenker’s home at Cremorne Point.

16 At 4:01 pm Mr Einfeld’s vehicle was photographed by a Roads and Traffic Authority camera in Macpherson Street Mosman and detected as travelling at 60 kph in a 50 kph zone.

17 Mr Einfeld proceeded to drive to Cremorne Point, where he dropped Ms Schenker off at her home, and he then drove to his home in Woollahra.

18 On 18 January 2006 the Infringement Processing Bureau sent a penalty notice to Mr Einfeld for the speeding offence.

19 Mr Einfeld completed a form of declaration on the notice in which he stated that another person named Brennan had been responsible for his vehicle on 8 January 2006 and he forwarded the notice with the completed declaration.

20 Subsequently, perhaps because the declaration Mr Einfeld had made had gone astray or been mislaid, a court attendance notice was issued and served on Mr Einfeld. The court proceedings were listed for hearing at the Downing Centre Local Court on 16 May 2006.

21 On 6 May 2006 Mr Einfeld completed and signed a written notice of pleading stating his intention to plead not guilty to the charge of speeding and he forwarded the notice to the Local Court.

22 Attached to the written notice of pleading was a letter dated 6 May 2006 from Mr Einfeld addressed to the Presiding Magistrate Downing Centre Local Court Sydney. The letterhead on the letter described Mr Einfeld as “The Honourable Justice Marcus R Einfeld”. In the letter Mr Einfeld said:-

“Attached is a written notice of pleading in respect of court list number 45 on 16 May 2006. It relates to a speeding matter. I am the defendant and the vehicle involved is mine but as I informed the police in the notice returned at the time, my plea of not guilty is because I was not the driver of the car at the time and place stated. In fact I do not know the area where it occurred at all. On that day my car was in the control of a visiting friend from the United States to whom I lent it for a couple of days. It was either being driven by her or by a family member of hers. She did not tell me where or with whom she had been driving or that she had been photographed speeding before returning to the US where she was unfortunately involved in a motor vehicle accident and died so I cannot get any more details.

I am sorry for the late notice but I have been travelling out of Sydney. I am happy to come to the court on a convenient day to swear to these facts if required.”

23 On 16 May 2006 a letter was sent to Mr Einfeld by the Local Court informing him that the hearing of the speeding charge had been adjourned to 7 August 2006.

24 On 7 August 2006 the hearing of the speeding charge took place. Mr Einfeld had asked a solicitor known to him to appear for him at the hearing and, before the matter was called, Mr Einfeld and the solicitor conferred in the courtroom.

25 In the hearing of the speeding charge the police prosecutor tendered the Roads and Traffic Authority documents relating to the offence. Mr Einfeld was then called by his solicitor to give evidence. The evidence included the following questions and answers:-

“Q. I think that you are also the registered owner of motor vehicle AJR-16F?

A. Yes.

Q. Justice Einfeld, do you recall where you were on 8 January 2006?

A. Yes, I was in Forster.

Q. I don't know whether you can tender an electronic diary, your Honour, but I think that by reference to your electronic diary you are able to confirm that you actually left Sydney on 7 January 2006?

A. Yes, it might have been the 6th.

Q. Did you take your vehicle with you?

A. No.

Q. What did you do with your vehicle?

A. I lent it to an old friend of mine who was visiting from Florida.

Q. I think that was Professor Theresa Brennan?

A. Yes, it was.

Q. And she had the use of your vehicle whilst she was on holidays?

A. She did.

Q. I think that some time after the 8th you received a notice advising that she had committed an offence whilst having your vehicle?

A. I did.

Q. Did you complete that statutory declaration which nominated her as the driver of the vehicle at the time of the offence?

A. I did.

Q. What did you do with that statutory declaration?

A. I sent it to the address that was given.

Q. Were you driving the vehicle on 8 January 2006?

A. No.

Q. Have you ever been to Macpherson Street, Mosman? A. Not to my knowledge, I don't know where it is.”

26 Mr Einfeld was not cross-examined and the Magistrate dismissed the charge against him.

27 I have now concluded my summary of the Crown’s statement of the facts of the first offence, that is the offence of perjury committed on 7 August 2006.

28 The facts of the first offence of perjury formed the background to the second offence of perverting the course of justice. I will now quote or summarise parts of the Crown’s statement relating to the second offence.

29 When Mr Einfeld gave his evidence in the Local Court on 7 August 2006 a reporter from the Daily Telegraph newspaper Ms Viva Goldner was in the courtroom.

30 Later that day Ms Goldner made an Internet search and discovered that Professor Teresa Brennan had died in February 2003 as a result of a motor vehicle accident.

31 Ms Goldner contacted Mr Einfeld by telephone and referred to the result of the search she had made. She asked Mr Einfeld whether he could clear up the confusion. Mr Einfeld said to Ms Goldner “this was not the same person ... this is a totally different person”. Mr Einfeld then said that he would call her back.

32 Later that day Mr Einfeld telephoned Ms Goldner and had a further conversation with her. In this conversation, Mr Einfeld said:-

“I have an old friend Professor Teresa Brennan of Florida. I attended her funeral after she died in a car accident ... I knew another Professor Brennan, whose first name was Terese or Therese, he (that is Mr Einfeld ) was not sure of the spelling. This woman had visited Sydney this year and had also died in a car accident.”

33 The conversation ended shortly afterwards.

34 Ms Goldner telephoned Mr Einfeld again and asked Mr Einfeld to provide further details about this other Professor Brennan. Mr Einfeld said that he did not have any further details, except that he believed that she lived in one of the States of America, that he thought that she was an Australian, that she had been in Australia in December 2005, that he did not know what her occupation was except that she was in academia, and that he did not know what university she was at.

35 On 8 August 2006 the Daily Telegraph newspaper published, an article by Ms Goldner. I am satisfied on the basis of other evidence admitted in the sentence hearing that the article was headed “The respected judge the dead professor and a speeding fine” and had photographs of Mr Einfeld and of the late Professor Teresa Brennan of Florida State University.

36 On 9 August 2006, after further publicity, Mr Einfeld made an oral statement to a Channel 9 television journalist at the chambers of a senior counsel then acting for him. In the statement Mr Einfeld said:-

“I categorically deny that I was the driver of my car on 8 January 2006 in Mosman. On January 8 I was out of Sydney after attending the New Year cricket test here in the holiday period. If I had committed this speeding offence I would have paid the fine like any other responsible citizen. I am advised that my licence was not at risk at that time, or now. I would not even think of misleading a Court. The suggestion that I have done so is hurtful because it contradicts everything I have always stood for. As I said in Court, I am uncertain as to who was driving the car at the time but I did authorize an old acquaintance to use it while I was out of town. As the matter is now apparently sub judice, it will be obvious that I cannot say anything more on the subject at this time, I have authorised my lawyers to act on my behalf in dealing with the intense media attention which is of considerable worry to my family. They will also represent me if this matter should go any further. I again unequivocally and categorically deny any suggestion of wrongdoing on my part.”

37 On 10 August 2006 police commenced an investigation into whether Mr Einfeld had committed perjury when giving evidence on 7 August 2006.

38 On 24 August 2006, at the request of senior counsel then acting for Mr Einfeld, police attended at counsel’s chambers and were handed four signed statements and in particular a signed statement by Mr Einfeld dated 23 August 2006.

39 Mr Einfeld’s signed statement of 23 August 2006 is 20 pages long and contains 82 paragraphs, not including annexures. The making of the statement was the basis of the second charge against Mr Einfeld of perverting the course of justice. As I have already noted, the statement itself was admitted into evidence in the sentence hearing. I will now quote or summarise parts of Mr Einfeld’s statement of 23 August 2006. It is, of course, the Crown case that a number of parts of the statement were false.

40 In par 1 Mr Einfeld summarised his legal career as a barrister and as a judge. He said:-

“I was born on 22 September 1938. I was a barrister from 1962 until I took silk in 1977. I was appointed to the Federal Court of Australia in 1986 when I was also appointed first President of the Human Rights and Equal Opportunity Commission. I retired from the Commission in 1990 and from the Federal Court in 2001 and now hold a practising certificate at the New South Wales Bar...”

41 In par 2 Mr Einfeld referred briefly to his having given evidence on 7 August 2006 in proceedings arising out of the charge of speeding on 8 January 2006. In par 3 Mr Einfeld said:-

“As I informed the Court, I was not driving my vehicle on that occasion.”

42 In par 4 Mr Einfeld said:-

“On 8 January I lent my car to a woman who told me her name was “Brennan”.”

43 In pars 5-16 of the statement Mr Einfeld supplied some information about the woman who had told him that her name was Brennan.

44 In par 5 Mr Einfeld said:-

“I had met Brennan in 1992 at a refugee camp in Bangladesh on a visit made with an AUSTCARE team. My recollection is that she introduced herself to me as "Terry Brennan" but I also recall other people referring to her as Teresa or Terese.”

45 In subsequent paragraphs Mr Einfeld said that when he had met Brennan she had told him that she was a Professor “of a special philosophy like eastern philosophies or something of that nature”. In subsequent years Brennan had contacted Mr Einfeld once or twice or perhaps three times but Mr Einfeld could not recall specific details. He had not seen Brennan between 1992 and 2005 and had not communicated with her by email.

46 Paragraphs 17, 18, 19 and 20 of the statement were in the following terms:-

“17. In late December or early January she (that is, Brennan) called to say she was here — that is in Australia not necessarily Sydney — and asked if we could get together for a coffee or a bite while she was in Sydney. I think I said something about going to the cricket and that I was then going away but we would try.

18. She asked if there was any chance that I could lend her a car. I answered:-

“I may be able to lend you a car for a day or so depending on when it is.”

She was to let me know.

19. This was by no means the first time I have lent my car. I have on occasions allowed people to drive my car when I could do without it.

20. At some time between the end of the cricket and Saturday January 7, she called to ask if she could have the car on Sunday. She said she wanted to go out with some friends to see a bit of Sydney.

I said: “Can you drive?”

She said: “Of course and my friends know Sydney well.”

I said: “You will have to come to me to collect the car.”

She said: “Would 11.00 be possible?”

I said: “OK.”

I gave her the address where I lived but asked her to keep the address confidential, as it is not listed for security reasons.”

47 In pars 21 to 25 of the statement Mr Einfeld referred to an arrangement which had been made for his partner, Mr Einfeld’s mother, his partner’s mother and his partner’s daughter to attend a theatre performance in the City on the afternoon of Sunday 8 January 2006. The Crown does not dispute that this arrangement was made.

48 In par 25 of the statement Mr Einfeld said that, because his partner had not returned from a walk by about 11 o’clock in the morning and “they (that is, the women) would be tight for time”, he decided to pick up his mother from her unit at Bondi Junction and bring her to Mr Einfeld’s home in Woollahra. Accordingly, Mr Einfeld drove in his vehicle, that is the Lexus, from his home in Woollahra to his mother’s unit at Bondi Junction, picked up his mother and drove back to his home in Woollahra.

49 Paragraphs 26 to 29 of Mr Einfeld’s statement were in the following terms:-

“26. When we arrived back home Brennan was outside the house. I had not seen her for many years but she said:

“Hello Marcus.”

and I realised who she was. She is of average height (not higher than my shoulder) slim build with hair that is brownish, that is neither dark nor blonde. She was wearing a white or light fawn top, light pants and flat shoes. I thought she was in her mid to late 40s, perhaps 50.

27. I introduced her to my mother whom I was helping from the car down the stairs and into the house. I told Brennan I would be back in a second to show her how to use the car.

28. I helped Mum down the stairs, took her inside and sat her down. Going down the stairs, Mum asked:

“Who is that?”

I said something like:

“Just an old friend from overseas whom / am lending the car for the day.”

She said something like:

“Are you nuts? I've told you before not to lend the car even to the kids.”

29. I then went back out to show Brennan how to use the car. I think I may have driven her or let her drive me around the block. I believe she would have told me that she had a licence. I pointed out various features of the car including the handbrake, which is operated by foot. I also pointed out the e-tag and explained how it worked. She said that she would have the car back before dinner time.”

50 It is implicit in Mr Einfeld’s statement that Brennan then drove off in Mr Einfeld’s vehicle.

51 In pars 30 and 31 of Mr Einfeld’s statement Mr Einfeld said that his partner returned from her walk and that soon after midday Mr Einfeld’s partner, Mr Einfeld’s mother and Mr Einfeld’s partner’s daughter left in Mr Einfeld’s partner’s car to attend the theatre performance. The Crown does not dispute the truth of pars 30 and 31.

52 In par 32 of Mr Einfeld’s statement Mr Einfeld said that some days before 8 January 2006 he had made an arrangement with an old friend Ms Vivian Schenker to have lunch with her on 8 January 2006 at the Pilu Restaurant at Freshwater. The Crown does not dispute that such an arrangement was made.

53 In par 34 of his statement Mr Einfeld said that on 8 January 2006, after the women had left to go to the theatre, he suddenly remembered that he had made an arrangement with Ms Schenker for lunch. As he had let Brennan take his vehicle, he had to go and get his mother’s car which was parked at her place at Bondi Junction.

54 In par 35 of his statement Mr Einfeld said in part:-

“I had a full set of keys for everything at Mum's place. I walked around there and then drove in her white Toyota to pick up Vivian who lives at Cremorne Point...”

55 In pars 36 to 38 of the statement Mr Einfeld described arriving at the restaurant, parking, having lunch at the restaurant with Ms Schenker and driving Ms Schenker home. The Crown does not dispute the truth of any of the assertions in pars 36 to 38 of the statement.

56 In par 39 of the statement Mr Einfeld said:-

“After dropping her off I drove home myself. I estimate that I arrived home about 5.00 or a bit later and took Mum's car back to her place. I walked home. I noticed my car parked near my house. This would have been at or after 5.30 because I would have gone to my post box, which is in Oxford Street, Bondi Junction not far from Mum's place before coming home. The car keys had been put through the letter opening in the door plus a thank you note which I later discarded.”

57 In pars 40 and 41 of the statement Mr Einfeld described receiving the Infringement Notice. He said:-

“I recall inserting Brennan’s name (in the statutory declaration on the notice as being the person responsible) because she was responsible for the vehicle on 8 January.”

58 In pars 42 to 49 of the statement Mr Einfeld referred to the court proceedings and the court hearing on 7 August 2006. in par 46 he said:-

“While I was waiting (that is waiting for his case to come on) I looked again at my palm pilot and confirmed to myself that the entry in my diary for 8 January showed Forster”.

In par 48 Mr Einfeld said “I had my palm pilot with me in the witness box and looked at it as I was giving my evidence.”

59 In pars 50 to 70 of the statement Mr Einfeld gave a fairly lengthy account of his activities in Forster in December 2006. In par 68 he said that he had entered Forster in his diary in anticipation of an intended visit on the weekend of 7 January 2006, which did not eventuate.

60 In pars 69 and 70 of the statement Mr Einfeld said:-

“69. When I gave my evidence I relied upon my palm pilot both before I got into the witness box and when I was in the box. In those circumstances I believed that I was in Forster. In fact I continued to believe my diary entry and that I was not in Sydney on January 8, and only discovered the facts towards the end of last week after my lawyers instructed me to locate and examine every conceivable document that might reveal my movements relevant to this matter.

70. When I eventually located and examined my credit card and telephone accounts I was able to reconstruct many of the events of January 8, I was also assisted by my mother's date pad entry for January 8 which revealed the booking for Menopause on that day.”

61 Paragraphs 71 to 73 of Mr Einfeld’s statement were in the following terms:-

“71. In my letter to the Court and my evidence, I said that Brennan had died. My knowledge of what happened to her is this.

72. At some time — I do not recall if it was before or after I received and sent in the statutory declaration — I received a call from a man with what appeared to be a North American accent. He asked if I was Marcus. I said `yes". He asked if I knew Brennan, I said "yes". He said words to the effect:

“l am ringing to let you know that she has died (he may have said "been killed") in an accident.”

I said: “Bloody hell, / don't believe it.”

He said: “I am just calling people on her list." He may have said: "in her book.”

I said: “When?”

He said: “Last week”"

I said: “I don't believe it, I just cannot believe it.”

I was in a state of complete shock, I may have said:

“Thanks”

and hung up.

73. I do not know where I was when I received that call. I was shocked. I do not think I even asked where or how she died. My first thought was of my friend Theresa Brennan who had lived in Florida. I am not certain the caller said that the accident was a car accident. I just concertinaed the two happenings in my head.”

62 In par 74 of his statement Mr Einfeld said that on the evening of 8 August 2006 he had sought legal advice. He continued:-

“After another 24 hours of media barrage I told my lawyers that I thought I had to say something. I was a public person, I had done nothing wrong and I did not propose to hide away. Later that day I made a statement from (senior counsel’s) chambers.”

63 In par 75 of his statement Mr Einfeld said:-

“I said in the statement that I was out of Sydney because that was still my belief at the time.”

64 In pars 76 to 79 of the statement Mr Einfeld supplied information about mobile telephone calls made on 8 January 2006 using Mr Einfeld’s mobile telephone.

65 In par 80 of the statement Mr Einfeld said:-

“80. As the sensationalism grew it became obvious that there would have to be some police involvement. In fact I wanted my lawyers to try to get the police involved and I told them to tell the police that I would cooperate fully. I believe I am doing so by providing this statement and records. I have of course instructed my lawyers and many friends to search the Internet for any possible person who might have been this woman. The problem is that I do not know under which name she went except in her association with me and I do not know in which country she died apart from the fact that the caller who informed me of her death had an American or Canadian accent.”

66 I have now concluded my summary of Mr Einfeld’s statement of 23 August 2006 and will resume my general summary of the Crown’s statement of the facts.

67 Mr Einfeld’s mother lived in a unit in an apartment block at Bondi Junction. Mrs Einfeld was the owner of a Toyota Corolla car. The apartment block had an internal secure car park for residents’ vehicles in which there was only one entry/exit. There was a security camera at the entry/exit which recorded the entry and exit of vehicles.

68 As part of their investigation police reviewed the footage taken by the security camera. This review revealed that, while on certain other days Mrs Einfeld’s vehicle could be seen entering or exiting the car park, no movement whatsoever of Mrs Einfeld’s vehicle, whether entering or exiting the car park, could be observed on 8 January 2006.

69 The investigation also included the making of a search by the Department of Immigration and Multicultural Affairs of its records of persons entering or leaving Australia. This search revealed that there was only one person with the name Theresa Brennan or Teresa Brennan or a similar name who had entered Australia and left Australia at times which could possibly be consistent with what Mr Einfeld had said in his statement of 23 August 2006. This person whose name is Teresa Brennan lives in Ireland and arrived in Australia on 11 December 2005 and departed from Australia on 18 March 2006. She was traced and she made a statement to police in which she said that she had never heard of Marcus Einfeld and had never been to Bangladesh.

70 Paragraph 22 of the Crown’s statement of facts was in the following terms:-

“In January 2006 the offence of exceeding the speed limit by less than 15km/h attracted 3 demerit points and a $75 fine. An analysis of Einfeld's driving record for the relevant period indicates that, as at 8 January 2006, Einfeld had accumulated 8 demerit points in the preceding three years due to three speeding offences (offence dates: 9/12/05, 11/1/04 and 11/6/03.). Accordingly, he had only 4 demerit points left on his licence. If he was convicted for the 8 January 2006 offence he would have accumulated 11 demerit points within a three year period commencing on 11 June 2003. As at 8 January 2006 he was not therefore facing licence suspension but was (up until 10 June 2006) in a perilous position in terms of demerit point accumulation. The period of suspension imposed if a driver accumulates 12-15 demerit points within any 3 year period is 3 months.”

Principles governing further fact finding

71 In the rest of these remarks on sentence I will make some further findings of fact on the basis of evidence admitted in the sentence hearing. In making those further findings I am mindful of the principles that I should not find any fact which would be adverse to Mr Einfeld unless I am satisfied that that fact is established beyond reasonable doubt, whereas I should find any fact which would be favourable to Mr Einfeld if I am satisfied of that fact on the balance of probabilities; that not all the facts which could be relevant to sentencing are necessarily capable of being classified as either facts adverse to Mr Einfeld or facts favourable to Mr Einfeld; and that the state of the evidence may be such that I am unable to make any finding on some matters.

Further findings in relation to the objective facts of the offences

The first offence

72 By his plea of guilty to the charge Mr Einfeld admitted that the evidence he gave on 7 August 2006, that he was not the driver of the vehicle at the time the speeding offence was committed, was knowingly false.

73 An aggravating factor is that the offence was pre-meditated. On or about 6 May 2006, that is about three months before Mr Einfeld gave the perjured evidence, he sent the notice of pleading and the letter of 6 May 2006 to the Local Court. In the letter he said that he was pleading not guilty to the charge of speeding on the basis that he had not been the driver of the vehicle at the time the offence was committed and that, if required, he would give sworn evidence to that effect.

74 On 7 August 2006 Mr Einfeld conferred with his solicitor before he gave evidence. It is apparent from the leading questions asked by Mr Einfeld’s solicitor and the assents by Mr Einfeld to the leading questions that the evidence to be given by Mr Einfeld had been discussed between Mr Einfeld and his solicitor and that the evidence which was subsequently given was in accordance with that discussion.

75 The present offence was deliberate, premeditated perjury. The present offence is to be distinguished from an offence of giving perjured evidence on the spur of the moment, for example under pressure from an opponent’s counsel during cross-examination.

76 I also find that the present offence was part of a planned criminal activity. An explanation of this finding involves referring to a submission made at the sentence hearing by counsel for Mr Einfeld.

77 If it was knowingly false for Mr Einfeld to say in his evidence that he was not the driver of the vehicle on 8 January 2006 when the offence was committed, then it was necessarily also knowingly false for Mr Einfeld to say in his evidence that on 8 January 2006 he was in Forster and that he had lent the vehicle to Professor Teresa Brennan. However, the only charge of perjury of which Mr Einfeld has been convicted and for which he is to be sentenced is that he gave knowingly false evidence that he was not the driver of the vehicle at the time the traffic offence was committed.

78 Counsel for Mr Einfeld submitted at the sentence hearing that, although he had not objected to the whole of the evidence given by Mr Einfeld on 7 August 2006 being admitted into evidence in the sentence proceedings, nevertheless in sentencing Mr Einfeld I could only have regard to the one false statement in respect of which Mr Einfeld had been convicted.

79 I accept that I am to sentence Mr Einfeld only for the one false statement which was charged and of which he has been convicted, namely his denial that he was the driver of the vehicle. However, I consider that I can have regard to other evidence given by Mr Einfeld on 7 August 2006 for the purpose of determining whether the false statement charged, that he was not the driver of the vehicle, was part of a planned criminal activity. I find that it was planned by Mr Einfeld that his denial that he had been the driver of the vehicle would be supported by his nominating someone else, Professor Teresa Brennan, as having been the driver of the vehicle and by his setting up an alibi for himself that he had been in Forster on 8 January 2006 and by representing that the alibi was supported by an entry in an electronic diary, which he had with him in the witness box.

80 The offence of perjury was clearly committed by Mr Einfeld for his own benefit and not, as happens in some offences of perjury, for the benefit of someone other than the witness.

81 As to Mr Einfeld’s motive, it would seem to me unlikely that he was motivated by a desire to avoid having to pay a fine of a quite modest amount. It would seem more likely that he was motivated by a desire to avoid incurring any further demerit points against his licence.

82 It might be expected that a driver who had committed three speeding offences within the previous three years would be aware that he had incurred a number of demerit points. However, the author of the pre-sentence report recorded that “he (Mr Einfeld) denied having any exact knowledge of being at 11 demerit points on his driver’s licence, if convicted of the speeding offence”.

83 At the sentence hearing the Crown did not submit that I should reject Mr Einfeld’s denial recorded in the pre-sentence report and merely submitted that I should find that Mr Einfeld committed the perjury offence to “overcome” the speeding charge, that is in order to successfully defend the speeding charge and that is the finding I consider I should make.

84 Earlier in this remarks I quoted par 1 of the Crown’s statement of facts and par 1 of Mr Einfeld’s statement of 23 August 2006, in both of which Mr Einfeld’s legal career was summarised. He had been a barrister and a judge and at the time of committing the offence held a practising certificate as a barrister and still occasionally appeared as a barrister. At the time of committing the offence he was not a judge of any court. The offence was not committed by Mr Einfeld in the capacity of being a judge or a lawyer. However, by reason of his career in the law, he must be taken to have fully appreciated the great importance of evidence given in court proceedings being truthful.

85 A further aggravating matter is that when Mr Einfeld was giving evidence his solicitor addressed him as “Justice” Einfeld. As I have already noted, Mr Einfeld was not then a judge of any court and it was inappropriate for his solicitor to address him as Justice Einfeld. More importantly, I am satisfied that, although on other occasions also Mr Einfeld used the title “Justice”, the title was used on this occasion with the approval of Mr Einfeld and for the purpose of conveying to the Local Court Magistrate hearing the case that the witness was a judge and, for that reason, the evidence given by the witness could readily be accepted as being truthful.

86 The perjured evidence given by Mr Einfeld achieved its object. The speeding charge against Mr Einfeld was dismissed.

87 In the course of the sentence hearing counsel for Mr Einfeld expressly disavowed making any submission that Mr Einfeld’s conduct in making a false assertion that he had not been the driver of a vehicle owned by him at the time a traffic offence was committed, was an isolated aberration. He had not, of course, previously committed perjury. The fact that no such submission was made is not an aggravating factor but it means that what might otherwise have been a mitigating factor is not present.

The second offence

88 It is convenient at the outset to refer to a submission made by counsel for Mr Einfeld at the sentence hearing.

89 The charge to which Mr Einfeld pleaded guilty was that Mr Einfeld on or about 23 August 2006 made a false statement with intent thereby to pervert the course of justice. It was submitted by counsel for Mr Einfeld that it was essential for the Crown to specify a particular false assertion in the 20 page statement of 23 August 2006 as being the false statement alleged in the charge and that the Crown could not rely generally on the 20 page statement as being “the false statement” alleged in the charge.

90 It was submitted by the Crown that s 319 of the Crimes Act under which the charge was brought provides that a person who does any act intending in any way to pervert the course of justice is liable to imprisonment and that the act charged by the Crown was the act of making, that is of preparing, signing and handing over to the police, the statement of 23 August 2006 and that the Crown was not limited to relying on any particular single assertion in the statement.

91 I ruled in favour of the Crown that the act which was alleged in the count was the making of the 20 page statement, in the sense submitted by the Crown, and I adhere to this ruling. After I made this ruling at the sentence hearing, no application of any kind was made on behalf of Mr Einfeld.

92 Although I held that the act done by Mr Einfeld with the intent to pervert the course of justice which was charged in the second charge, was the act of preparing, signing and handing over the statement of 23 August 2006 in its entirety, I made a further ruling that the only particular assertions made in the statement which the Crown could submit were false were those in the paragraphs of the statement which had been identified in an email of 24 February 2009 from the Director of Public Prosecutions to Mr Einfeld’s counsel, that is the assertions made in pars 3,4,8,17,18,20,26-29,34-35,39,40-41,46,68-70,72-75 and 80.

93 The principal assertions made in the statement of 23 August 2006 are those in par 3, that Mr Einfeld was not driving the vehicle at the time of the camera-recorded speeding offence, and in par 4, that on 8 January 2006 he had lent his vehicle to a woman who had told him that her name was Brennan. Much of the rest of the statement consists of furnishing details in support of those principal assertions. By his plea of guilty to the offence of perjury, Mr Einfeld necessarily admitted that each of the principal assertions was knowingly false.

94 As to the other paragraphs identified in the Director of Public Prosecutions’ email of 24 February 2009, I am satisfied on the basis inter alia of the two pleas of guilty, the admissions necessarily involved in those pleas of guilty, the inherent unlikelihood of there being a second woman named Brennan or with a name like Brennan who was also a Professor in a North American University and who had also died as the result of an accident, the evidence of the review by police of the footage taken by the security camera in the car park of Mrs Einfeld’s apartment block and the evidence of the records of the Department of Immigration and Multicultural Affairs, that, in addition to the assertions in pars 3 and 4, the following assertions in the statement were also knowingly false.

1. All of the assertions in pars 17, 18 and 20 of the statement about alleged conversations between Mr Einfeld and Brennan before 8 January 2006.

2. All of the assertions in pars 26-29 of the statement about the alleged meeting with Brennan on 8 January 2006, about Brennan’s alleged appearance, about the alleged conversations with Brennan on 8 January 2006, about the alleged conversation by Mr Einfeld with his mother and about the alleged instructions and information given by Mr Einfeld to Brennan about how to use the car.

3. The assertions in pars 34 and 35 of the statement that Mr Einfeld had let Brennan use his car, that he had walked to his mother’s place to get his mother’s car and that he had used his mother’s car to drive to Ms Schenker’s place at Cremorne Point.

4. The assertions in par 39 of the statement that he took his mother’s car back to her place, that he walked to his own home, that he noticed his car parked near his house and that the car keys to his car and a thank you note had been put through a letter opening in the door.

5. The assertions in pars 40 and 41 of the statement that Mr Einfeld recalled lending his car to Brennan and that his reason for inserting Brennan’s name in the declaration on the Infringement Notice as being the person responsible was because she was the person responsible for the vehicle on 8 January 2006.

6. The assertion in par 46 that an entry in his palm pilot diary confirmed that he had been in Forster on 8 January 2006.

7. The assertions in pars 69 and 70 of the statement that he had relied on an entry in his diary in giving his evidence, that at the time he gave his evidence he believed that he had been in Forster on 8 January 2006 and that he had not discovered the true facts until shortly before he made his statement.

8. All of the assertions in pars 72 and 73 about being informed of the death of the other Brennan.

9. The assertions in pars 74 and 75 that he had done nothing wrong and that he had said in his statement to the television journalist on 9 August 2006 that he was out of Sydney on 8 January 2006 because that had been his belief at the time.

10. The assertion in par 80 of the statement that he was prepared to cooperate fully with the police investigation and the implied assertion that he had lent his car to a woman who it might be possible to find.

95 As I noted earlier in summarising Mr Einfeld’s statement of 23 August 2006, there are some parts of the statement which the Crown accepts as being true, including some parts which the Crown seeks to turn to its advantage. There are other parts of the statement as to which the Crown, having regard to the limited information available to it, is unable to make any submission about whether they are true or false.

96 The number of knowingly false assertions in the statement of 23 August 2006 and the importance of those assertions are aggravating factors.

97 The second offence was clearly premeditated. At the sentence hearing counsel for Mr Einfeld objected to the parts of the Crown statement about the conversations between Mr Einfeld and Ms Goldner on 7 August 2006 on the grounds that that evidence was irrelevant. However, in my opinion, this evidence was clearly relevant as showing the genesis of the false assertions made in the statement of 23 August 2006. In the first conversation Mr Einfeld was made aware that Ms Goldner, a journalist, had discovered that Professor Teresa Brennan of Florida, who had been identified as such in the evidence he had given on 7 August 2006 as having been the driver of the vehicle on 8 January 2006, had died in February 2003. The idea immediately occurred to Mr Einfeld to change his version of events and to assert that the person to whom he had lent his car was a different person.

98 It is true that as at 7 August 2006 no police investigation had yet been commenced into whether Mr Einfeld had committed perjury in giving his evidence. However, such an investigation did commence on 10 August 2006 and the statement Mr Einfeld made and handed over to the police on 23 August 2006 was in accordance with what he had said in his conversations with Ms Goldner. It is obvious from the detailed contents of the statement of 23 August 2006 that preparation of the statement would have taken some time.

99 I find that considerable planning went into the preparation of the statement of 23 August 2006 so as to present a version of events which, if accepted, would show that the evidence given by Mr Einfeld on 7 August 2006 had not been perjured.

100 The motive for committing the second offence was simply to escape conviction for perjury.

101 Mr Einfeld had been a barrister and a judge and at the time of committing the offence held a practising certificate as a barrister and still occasionally appeared as a barrister. The second offence was not committed by Mr Einfeld in the capacity of being a judge or being a lawyer. However, by reason of his career in the law he must be taken to have fully appreciated the seriousness of offences of perverting the course of justice.

102 As in the case of the first offence, counsel for Mr Einfeld expressly disavowed making any submission that Mr Einfeld’s conduct in committing the offence was an isolated aberration. As in the case of the first offence this is not an aggravating factor but it means that what might otherwise have been a mitigating factor is not present.

103 It is convenient to refer at this stage to a submission made by counsel for Mr Einfeld that I should sentence Mr Einfeld for the second offence on the basis that there was substantial commonality between the criminality in the first offence and the criminality in the second offence, that in sentencing Mr Einfeld for the second offence I should not punish him for any conduct which was part of the conduct constituting the first offence and that I should make any sentence for the second offence concurrent with, or substantially concurrent with, the sentence for the first offence.

104 This submission was largely based on a passage in an email dated 28 October 2008 from an officer of the Director of Public Prosecutions to Mr Einfeld’s counsel. This email was sent as a part of communications between the Director of Public Prosecutions Office and Mr Einfeld’s legal representatives, which led to Mr Einfeld entering his two pleas of guilty.

105 The passage in the email reads:

“The 319 charge

The Crown would agree that the statement giving rise to this charge (s 319) was an extension of the conduct giving rise to the perjury. The Crown agrees that the accused should not be doubly punished in respect of areas of commonality. The accused should only be punished for additional criminality involved. The Crown would agree that there is substantial commonality. Nevertheless the question of additional punishment will be a matter for the sentencing judge to assess.”

106 It was submitted by counsel for Mr Einfeld that in this email the Crown had agreed that Mr Einfeld’s conduct in committing the offence of perverting the course of justice should be regarded as an extension of his conduct in committing the perjury offence and that the Crown had agreed that there was “substantial commonality” between the two offences. It was further submitted that I should constrain my sentencing function and sentence Mr Einfeld in accordance with the agreement evidenced by the email or that I should at least take into account the agreement evidenced by the email.

107 In the Crown’s written submissions at the sentence hearing the Crown submitted that the two offences were separate and distinct offences and that the sentences for the two offences should be cumulative or at least partly cumulative. In oral submissions counsel for the Crown submitted that the second offence was the more serious of the two offences.

108 I do not consider that I should accept counsel for Mr Einfeld’s submissions. It is, perhaps, unfortunate that the Crown in the email stated its agreement that the conduct in committing the second offence was an “extension” of the conduct in committing the first offence and that there was “substantial commonality” in Mr Einfeld’s conduct in committing the two offences. However, any agreement that might have been made was that there was substantial commonality, and not complete commonality, and the author of the email was careful to add, correctly, that the question of punishment for the second offence would be a matter for the sentencing judge. In any event, whatever arrangement might have been made between the Crown and Mr Einfeld’s legal representative, it is not binding on me and I have to impose what I consider to be an appropriate sentence for the second offence, as well as for the first offence.

Subjective circumstances of Mr Einfeld

109 Reference has already been made to Mr Einfeld’s age and his career as a lawyer. Further evidence about Mr Einfeld’s subjective circumstances is to be found in the pre-sentence report and I will now refer to or quote passages in the pre-sentence report.

110 Mr Einfeld has been married twice and has children by each marriage. At the time of committing the offences he was in a long-standing relationship with a woman from whom he is now estranged.

111 Under the heading “Voluntary activities” the pre-sentence report states:-

“In addition to Mr Einfeld’s judicial duties, he was involved in a significant variety and number of voluntary activities in both Australian and international forums in legal, humanitarian, welfare and sports fields in an official capacity over many years...some notable involvements included his appointment as:

· Austcare Ambassador for Refugees
· UNICEF’s Ambassador for Children
· Consultant to the Commonwealth Secretariat, London on legal and judicial reforms in the Maldives (2005)
· President, Australian Legal Resources International which provided legal, judicial, parliamentary and government infrastructure reform to developing/third world countries.
· Foundation President, Australian Paralympic Federation

Additionally, Mr Einfeld was given a number of significant awards, primarily related to his voluntary activities, including Officer in the Order of Australia and National Living Treasure (National Trust, Australia).”

112 The pre-sentence report deals with “health/psychiatric/psychological issues” but largely by reference to medical and psychological reports which I will consider elsewhere in these remarks.

113 Under the heading “Attitude to the offences” the pre-sentence report states:

“In discussion with Mr Einfeld regarding his actions, he readily agreed that he remained cognizant of Teresa Brennan’s death in 2003 at the time of his written and oral evidence from May to August 2006. He was at a loss to adequately account for his offending actions, however he subsequently accepts responsibility. Mr Einfeld did not claim any significant mitigating circumstances. He denied having any exact knowledge of being at eleven demerit points on his driver’s licence, if convicted of the speeding offence.”

114 The pre-sentence report states:-

“Should the Court consider imprisonment, Mr Einfeld’s former judicial status, profile and medical conditions will necessitate a significant level of protection. It is acknowledged that such conditions are restrictive and isolating, with limited access to mainstream services and programs.”

115 The author of the pre-sentence report considered that Mr Einfeld would be capable of undertaking community service work within certain medical constraints but, given that his general medical practitioner considered that Mr Einfeld should not travel for more than 30 minutes at a time, he would be unsuited for travel to the Parramatta Detention Centre, which is the only available Periodic Detention Centre in the Metropolitan area.

Character references

116 There were admitted into evidence in the proceedings on sentence 28 character references. The referees included former judges, solicitors, academics, rabbis, holders of offices in Jewish organisations and many others. Most of the references provided further information about Mr Einfeld’s voluntary activities in legal, humanitarian, welfare and sports fields.

117 I have read all of the references and have taken all of them into account. I will not attempt any detailed summary of the references but I will briefly refer to parts of some of them.

(1) Mr David Bitel speaks particularly of Mr Einfeld’s work in establishing the organisation Australian Legal Resources International, through which the Australian legal community was able to provide legal infrastructure support to countries around the world.

(2) Professor Linda Briskman describes Mr Einfeld’s work in connection with an inquiry in Western Australia into the treatment of asylum seekers and refugees.

(3) Ms Louise Duff describes Mr Einfeld’s charitable, community and pro bono work, including work for homeless youth in inner city areas.

(4) Mr Ray Epstein, the Chief Executive Officer of a charitable organisation in Queensland for disabled persons, refers to Mr Einfeld’s role as the foundation chairman and president of the Australian Paralympic Federation and his lobbying for paralympic athletics to gain equal recognition with their olympic counterparts.

(5) Rabbi Pinchus Feldman describes Mr Einfeld as having been a tower of strength to the Yeshiva Centre in its religious, educational and welfare activities.

(6) The President of Jewish Care, a Jewish charity, refers to Mr Einfeld’s work on behalf of the Jewish community in Russia.

(7) The President of the Australian Association of Jewish Holocaust Survivors and Descendants states that Mr Einfeld has been the patron of that Association.

(8) Mr Harry Freedman, solicitor, refers to work done by Mr Einfeld as a barrister in proceedings against the Commonwealth government by Ms Vivian Solon, an Australian citizen who had been deported from Australia.

(9) The Consul for the Solomon Islands refers to work done by Mr Einfeld in inquiries in the Solomon Islands undertaken by him at the request of the Solomon Islands government.

(10) The President of the Australian Council of Jewry says that Mr

Einfeld had been an advocate for disadvantaged members of society.

(11) Mr John Hall refers to Mr Einfeld’s leadership in the field of human rights and his work with Australian indigenous communities and particularly in producing the Toomelah report.

(12) A judge of the Industrial Commission of New South Wales describes Mr Einfeld as “an outspoken advocate for human rights”.

(13) Rabbi Jeffrey Kamins says that Mr Einfeld has been extremely generous with his time for numerous organisations “both Jewish communal and Australian charitable”.

(14) Mr Madgewick a former judge of the Federal Court says that “for many years Marcus Einfeld has tenaciously, intelligently and practically battled in a number of ways for the betterment of humankind”.

(15) The Chief Executive Officer of the East Leagues Club refers to Mr Einfeld’s role as patron of the Eastern Suburbs Leagues Club and the Eastern Suburbs District Rugby League Football Club.

(16) A law lecturer refers to the 1988 Toomelah report prepared by a commission headed by Mr Einfeld concerning the condition of indigenous Australians in the Toomelah area.

118 The exhibits in the proceedings on sentence include the Toomelah report of June 1988 being a report of a commission of inquiry headed by Mr Einfeld into the problems and needs of Aborigines living on the New South Wales/Queensland border and a subsequent review called the Toomelah review in March 1989. Madeleine McGrady, a member of the Toomelah elders council, gave oral evidence about how highly Mr Einfeld is regarded in the community because of the work he had done for the community.

119 The Crown did not dispute the evidence of good character to which I have referred and it was accepted by the Crown that evidence of the good character of Mr Einfeld was relevant in the sentencing of Mr Einfeld.

Health

120 As noted earlier in these remarks, a report by Dr Robert Muller was admitted into evidence in the proceedings on sentence and Dr Muller also gave oral evidence.

121 In his report Dr Muller said that he had become Mr Einfeld’s general medical practitioner in December 2008, following the retirement of Mr Einfeld’s previous general medical practitioner Dr Churnin. Since December 2008 Dr Muller had seen Mr Einfeld on a number of occasions.

122 In his report Dr Muller stated that Mr Einfeld suffers from the following conditions:-

1. Peripheral neuropathy, that is disturbances in the nerves of both feet leading to sensory loss on the bottom of the feet. This condition has been present for many years and has not been alleviated by any treatment.

2. Chronic cough — this condition has been present for many years. Tests have not revealed any treatable cause.

3. Prostate cancer — Dr Muller has no special expertise in relation to prostate cancer and he referred in his report to reports by specialists which I will consider a little later in these remarks.

4. Blood irregularities — Mr Einfeld has some elevated readings which could lead to heart disease and stroke in the future, if they cannot be kept under control. Mr Einfeld takes medication and has been placed on a dietary regime.

5. Arthritis in the neck, shoulder and knees — these conditions have been present for a number of years.

6. Stress and depression — Dr Muller referred to a report from Mr Einfeld’s psychiatrist Dr Jonathan Phillips.

123 Under the heading “conclusions” Dr Muller expressed the opinion that Mr Einfeld’s health is deteriorating and that he should not travel for distances longer than half an hour at a time and that Mr Einfeld requires medical assessment and treatment by Dr Muller on a regular basis, with referrals to appropriate specialists as needed. Dr Muller stated:-

“It is my firm view that institutional incarceration or detention would exacerbate his ill health and significantly endanger his life by adding isolation, physical strains or restrictions and further stress to his already fragile state.”

124 In oral evidence Dr Muller said that he or a colleague had seen Mr Einfeld on seven occasions between 22 December 2008 and 23 February 2009. However, Dr Churnin’s records showed that Mr Einfeld had been seen by Dr Churnin at only three monthly intervals in 2008.

125 Dr Muller accepted that he had no detailed knowledge of what medical treatment might be available to Mr Einfeld within the correctional system, if he was imprisoned.

126 Dr Muller said that his opinion that, if Mr Einfeld was incarcerated, his life would be significantly endangered was based on talking to people, watching documentaries and from reading books and articles, all of which, he accepted, was “second or third hand hearsay”.

127 I accept that Mr Einfeld suffers from the physical conditions 1,2,4 and 5 in Dr Muller’s report. They are all long-standing and would not appear to have prevented Mr Einfeld from leading an active life in the past. I accept that they may be deteriorating,as Mr Einfeld becomes older.

128 I do not accept that Mr Einfeld needs to be seen by a general medical practitioner as frequently as he has been seen by Dr Muller since 22 December 2008.

129 I do not accept Dr Muller’s view that, if Mr Einfeld is imprisoned, his life would be significantly endangered. There was an insufficient basis for Dr Muller to form that view and the opinion of Mr Einfeld’s treating psychiatrist Dr Phillips was much more guarded.

130 Some reports by the doctors who have attended to Mr Einfeld for his prostate cancer were admitted into evidence in the proceedings on sentence.

131 Dr Phillip Brenner, a specialist urologist, performed an operation on Mr Einfeld for prostate cancer in July 2008. Mr Einfeld then underwent an extensive regime of radiotherapy under Dr Raj Jagavkar, an oncologist, terminating on 15 August 2008.

132 In a report of 4 September 2008 Dr Jagavkar said that Mr Einfeld had had an unexpected degree of treatment-related urinary irritability.

133 In a report of 19 December 2008 Dr Brenner said that Mr Einfeld had had quite severe radiation effects both on the bowel and the bladder. Dr Brenner expressed the opinion that a cystoscopy was necessary in order to exclude any pathology.

134 A cystoscopy, an exploratory procedure, was performed by Dr Brenner on 9 January 2009. Dr Brenner resected some necrotic tissue within the urethra of a kind often seen after radiation treatment. Dr Brenner added “hopefully this will give him some relief. Unfortunately, there is little else one can do in this situation, although usually the dysuria settles with the passage of time”.

135 I conclude that at present any cancer is under control, that Mr Einfeld has experienced distressing side effects from the radiotherapy but the side effects are likely to settle with the passage of time.

136 A report by Dr Jonathan Phillips, psychiatrist, was admitted into evidence in the proceedings on sentence.

137 Dr Phillips first saw Mr Einfeld as a patient in the late 1990s when Mr Einfeld was suffering from depression.

138 In late 2006 Dr Phillips saw Mr Einfeld again. “He had again become depressed but on this occasion in the context of legal issues which linked with the car accident on 8 January 2006”. The “car accident” was, of course, the speeding offence.

139 Dr Phillips found that Mr Einfeld “had numerous middle grade depressive and anxiety symptoms”. However, he was not nihilistic and had no intent to kill himself. Mr Einfeld’s score on a self-administered assessment for depressive symptoms was 31, placing him within the severe range for depressive symptoms.

140 Dr Phillips made a diagnosis of adjustment disorder with depressed mood and noted significant co-existing anxiety symptoms. Dr Phillips organised a treatment program of anti-depressant medication and supportive counselling or psychotherapy.

141 By mid-2007 Mr Einfeld was continuing to experience broad ranging depression and anxiety symptoms and he was referred by Dr Phillips to a clinical psychologist Dr Zeussman.

142 Further stressors on Mr Einfeld were, in Dr Phillips’ opinion, the diagnosis of cancer and the treatment for the cancer and “the intense interest shown by the press in his ongoing legal matters”.

143 Dr Phillips found that “despite intervention by Dr Zeussman and myself, Mr Einfeld has shown inadequate psychological improvement”. In a second self-assessment for depressive symptoms, Mr Einfeld had a score of 29, which was only a marginal reduction from the earlier score. Another test showed that he was within the moderate range for anxiety.

144 In his report Dr Phillips expressed the following conclusions:-

“Given Mr Einfeld’s ongoing psychological problems principally within the domain of depression, but also with co-existing anxiety, he will inevitably suffer a significant worsening of his psychological symptoms in the context of a full time custodial sentence. Additionally, he is an aging and physically unwell man and this will make the situation worse. In view of his failure to respond adequately to appropriate treatment (pharmaco-therapy, psychotherapy) I am unable to state that the patient will not become nihilistic in outlook in the course of a custodial sentence and then make an attempt on his life.

Lastly, but separately, it is significant that Mr Einfeld remains in treatment for his psychological problems. Treatment is unlikely to prove satisfactory within the prison system.”

145 In oral evidence Dr Phillips said that he could not give any information about what Mr Einfeld’s condition had been in 2006, before he first saw Mr Einfeld in November 2006.

146 Dr Phillips said that any prediction about whether a particular person is likely to commit suicide is difficult to make.

147 Dr Phillips accepted that, if Mr Einfeld was imprisoned, he would still be able to get any required medication but “he would not get the psychotherapy, ... the quality or the quantity that he would require, compared to the therapy that he has been getting”.

148 Dr Phillips agreed that “the legal context”, that is the events of 8 January 2006 and their consequences, formed a very important part of the reason why Mr Einfeld had become depressed but there were other factors as well, including his cancer and his general physical health problems.

149 A report by Dr Ronnie Zeussman, clinical psychologist, was admitted into evidence in the proceedings on sentence.

150 In the report Dr Zeussman stated that Mr Einfeld had attended 25 clinical psychology consultations for psychotherapy over a period of a year, the first of those consultations being on 29 June 2007 and the last of those consultations being on 27 June 2008. Therapy had been interrupted in July 2008 when Mr Einfeld had had surgery and treatment for cancer. Subsequently, however, the only occasions on which Mr Einfeld had been seen by Dr Zeussman were on 10 December 2008 and 19 December 2008.

151 I accept that Mr Einfeld suffers from depression and anxiety. The major, though not the only cause, of his condition is to be found in the events of 8 January 2006 and their consequences. There is no evidence to suggest that he was suffering from depression or anxiety before 8 January 2006, apart from the evidence about his depression in the late 1990s.

152 If Mr Einfeld is imprisoned, then his psychiatric or psychological symptoms are likely to become worse. However, I am not satisfied that there would be a real risk of Mr Einfeld becoming suicidal.

153 If Mr Einfeld is imprisoned, he should be able to obtain within the correctional system any medication he requires for his condition. However, if Mr Einfeld is imprisoned, he will not be able to receive psychotherapy in the quantity and quality which would be available to him, if he was at liberty in the community. However, I note that the program of regular psychotherapy administered by Dr Zeussman ended in June 2008 and was not resumed.

Extra-curial punishment

154 Extra-curial punishment refers to any serious loss or detriment an offender has suffered or will suffer as a result of committing the offence, quite apart from any punishment imposed by a sentencing judge. A sentencing judge can properly take into account any extra-curial punishment the offender has suffered or will suffer in deciding what sentence to impose.

155 The correspondence between the Attorney General of New South Wales, the President of the Bar Association and Mr Einfeld shows that Mr Einfeld has lost his commission as a Queen’s Counsel because of his offending. Mr Einfeld did not apply for a renewal of his barrister’s practicing certificate after 30 June 2007 and I accept that he did not apply for a renewal because of the charges against him. Not being able to practice as a barrister does not have the same serious consequences for Mr Einfeld as it would for a younger person. However, I accept that if he had continued to hold a practicing certificate, it is likely that he would have continued to appear at least occasionally as a barrister.

156 I have found that Mr Einfeld’s offending and the consequences of that offending are a major cause of his depression and anxiety. It is common for offenders who are the subject of criminal proceedings to become depressed and even severely depressed.

157 The form of extra-curial punishment most relied upon by Mr Einfeld’s counsel was what was submitted to have been the public humiliation and vilification of Mr Einfeld in the media, causing him considerable distress and bringing about the destruction of his formerly high reputation.

158 Summaries of reports in the media about Mr Einfeld from August 2006 to the present and copies of some newspaper reports and articles about Mr Einfeld are contained in two exhibits in the proceedings on sentence.

159 I accept that the publicity given to Mr Einfeld in the media since August 2006 has been extraordinary in its extent. Almost all of the publicity has been adverse to him. Much of the publicity has been humiliating and vilifying. I accept the submission by his counsel that there has been a very public destruction of Mr Einfeld’s reputation.

160 It is true that on 9 August 2006 Mr Einfeld made a statement to a television journalist, which he would have anticipated would be broadcast and parts of which were broadcast. However, I do not accept a submission by the Crown that the making of this statement could be regarded as having provoked the subsequent adverse publicity in the media. The tide of adverse publicity had already commenced and would have continued, regardless of whether Mr Einfeld had made his statement of 9 August 2006.

161 A number of Mr Einfeld’s referees expressed the view, on the basis of their observations of Mr Einfeld, that the adverse publicity in the media has had a devastating psychological effect on him and I consider I should accept this view.

162 In the High Court case of Ryan, an appeal against sentence by a person who had been sentenced for a number of sexual offences committed against boys and who had been a Catholic priest at the time of committing the offences and who had been the subject of much adverse publicity in the media, two of the High Court judges said that public opprobrium which an offender has suffered because of his crime was a matter that a sentencing judge could properly take into account and I consider that I should take into account the public opprobrium Mr Einfeld has sustained and the public destruction of his reputation.

Contrition

163 It is clear that any contrition on the part of Mr Einfeld was long delayed. The committing of the second offence was motivated by a desire to avoid conviction for the first offence. In the interview of 9 August 2006 Mr Einfeld quite brazenly denied any wrongdoing. As I have already found, the statement of 23 August 2006 contained many falsehoods. When Mr Einfeld saw Dr Phillips in November 2006 he told Dr Phillips that somebody else had been driving his car on 8 January 2006. It was only very much later that he told Dr Phillips that what he had previously said was untrue. By the time he entered his pleas of guilty Mr Einfeld must have realised that the Crown case against him on the charges to which he pleaded guilty was overwhelming.

164 Mr Einfeld did not give evidence in the proceedings on sentence and this circumstances makes it more difficult to make a finding of contrition in his favour. However, a number of the referees who have spoken to Mr Einfeld describe recent expressions of remorse and shame by Mr Einfeld. The pre-sentence report stated that Mr Einfeld accepted responsibility for his actions.

165 I am prepared to find that Mr Einfeld has now shown contrition and that evidence has been provided that he accepts responsibility for his actions.

Mitigating factors within s 21A(3) of the Crimes (Sentencing Procedure) Act

166 I find that the following mitigating factors within s 21A(3) are established:-

(e) Mr Einfeld does not have any criminal record

(f) Mr Einfeld was a person of good character

(g) Mr Einfeld is unlikely to re-offend

(h) Mr Einfeld has good prospects of rehabilitation

(i) Mr Einfeld has shown remorse

(k) Mr Einfeld has pleaded guilty to both offences

167 I do not agree that the mitigating factor in paragraph (a), that is that “the injury”, emotional harm, loss or damage caused by the offence was not substantial” has been established. In the case of offences against public justice such as the present offences, although there is no injury, emotional harm, loss or damage to any ascertained individual, there is substantial damage to the system of justice.

Protection

168 The author of the pre-sentence report stated in the report that Mr Einfeld’s former judicial status, profile and medical conditions would, if he was sentenced to imprisonment, necessitate a significant level of protection, and that the conditions of his custody would be restrictive and isolating, with limited access to services and programs within the correctional system.

169 At the sentence hearing counsel for the Crown made a concession that, because Mr Einfeld had been lawyer and a judge, he would, if sentenced to a term of imprisonment, serve that sentence in some form of protective custody and that that would be a mitigating factor in determining appropriate sentences.

The pleas of guilty

170 As stated earlier in these remarks Mr Einfeld pleaded guilty to both the charges on 31 October 2008.

171 Mr Einfeld was charged with these two offences and other offences on 29 March 2007. Committal proceedings took place in December 2007 and Mr Einfeld was committed for trial on a number of charges, including the two present charges.

172 On 7 March 2008 Mr Einfeld appeared before the criminal list judge of the Supreme Court. Counsel for the Crown proposed to present an indictment containing nine counts. Counsel for Mr Einfeld submitted that Mr Einfeld should not be required to plead, as there were a number of pre-trial issues to be determined. The outcome was that Mr Einfeld was not arraigned on 7 March 2008.

173 Pre-trial applications were brought on behalf of Mr Einfeld. I delivered a judgment on 19 May 2008 in which inter alia I dismissed an application that the first five counts in the proposed indictment, which were charges of perverting the course of justice, be quashed.

174 An appeal was brought from my decision and on 19 October 2008 the Court of Criminal Appeal delivered a judgment in which the appeal from my decision was allowed and the first five counts in the proposed indictment were quashed.

175 Soon after the Court of Criminal Appeal delivered its judgment, Mr Einfeld’s legal representatives indicated to the Director of Public Prosecutions Office that Mr Einfeld might be prepared to plead to some of the charges and by the last week in October 2008 an agreement had been reached that Mr Einfeld would plead guilty to the two present charges and the Crown would accept those pleas in full discharge.

176 Two charges of perjury which had been included in the proposed indictment were not pressed by the Crown. These were charges that in giving evidence on 7 August 2006 Mr Einfeld made a false statement that on 8 January 2006 he had lent his vehicle to a woman named Teresa Brennan and that on 8 January 2006 he had been in Forster. By pleading guilty to the charge of perjury which remained, that in giving evidence on 7 August 2006 he had made a false statement that he had not been the driver of the car on 8 January 2006, Mr Einfeld necessarily admitted that the other two statements were false.

177 An offender who has pleaded guilty to a criminal charge and who is sentenced to a term of imprisonment usually receives a discount in sentence of between 10 per cent and 25 per cent in recognition of the utilitarian value of the plea of guilty, that is the saving or benefit to the operation of the criminal justice system resulting from the plea. The primary, although not the only factor, in determining where in the range a particular case should fall is the timing of the plea. Another factor is what would have been the length and complexity of any trial.

178 In the present case, if I impose a sentence of a term of imprisonment for either offence, I have to determine what discount I should allow for the utilitarian value of the plea of guilty.

179 In the present case it was submitted by counsel for Mr Einfeld that, if I sentence Mr Einfeld to a term of imprisonment for either offence, Mr Einfeld’s plea of guilty should be regarded as an early plea. It was submitted that Mr Einfeld had not pleaded earlier than he did, because the indictment which the Crown proposed to present against him contained five counts which he wished to challenge, he had brought a challenge to those counts and his challenge had been upheld by the Court of Criminal Appeal. The pleas of guilty had been entered almost immediately after the Court of Criminal Appeal handed down its decision. It was submitted that in these circumstances Mr Einfeld’s pleas of guilty should be regarded as having been entered at the first reasonable opportunity and Mr Einfeld should receive a discount at or near the top of the range.

180 I do not consider that Mr Einfeld’s pleas of guilty should be regarded as early pleas. The two charges to which he pleaded guilty were included in the indictment the Crown wished to present on 7 March 2008. No challenge was ever made by Mr Einfeld to the present charge of perverting the course of justice, which was clearly in a different category from the other charges of perverting the course of justice which were quashed by the Court of Criminal Appeal. No challenge was ever made by Mr Einfeld to the present charge of perjury. It would have been open to Mr Einfeld to plead guilty to the two present charges, while reserving his position in relation to the other charges of perverting the course of justice.

181 In any event, what is recognised by the discount for the utilitarian value of the plea of guilty is the actual benefit to the justice system from the plea of guilty. The actual benefit to the justice system is substantially less, if the plea of guilty is entered at a late stage rather than at an early stage of the criminal proceedings against the offender. In the present case Mr Einfeld’s trial was fixed to commence on 3 November 2008, the Crown witnesses had been subpoenaed and a jury panel had been summoned. I accept that a trial which could have lasted several weeks was averted.

182 I have decided that, if I impose a sentence of imprisonment for either offence, I should allow a discount for the utilitarian value of the plea of guilty of about midway between 10 per cent and 15 per cent, that is about 12 ½ per cent.

Sentencing

183 As has often been said, each of the offences of perjury and perverting the course of justice strikes at the heart of the administration of justice. These offences are often referred to as offences against public justice. In sentencing for these offences there is a special need to give effect to the purposes of sentencing of general deterrence and denunciation, as well as the other purposes stated in s 3A of the Crimes (Sentencing Procedure) Act. Any lawyer, and especially a lawyer who has been a barrister and a judge, who commits such an offence is to be sentenced on the basis that he would have been fully aware of the gravity of his conduct. If an offence of this kind is committed after a primary offence, whether or not the primary offence is a public justice offence, in an attempt to escape conviction for the primary offence, then some separate effective punishment should generally be imposed for the public justice offence. In the case of perjury a full time custodial sentence should be imposed, unless there are very special circumstances. There is no such principle in the case of perverting the course of justice as offences of perverting the course of justice can vary greatly in their degree of seriousness. Nevertheless, in sentencing for an offence of perverting the course of justice it is necessary to have regard to the principles I have stated. In sentencing for both offences, as in the case of sentencing for offences generally, persuasive subjective considerations should not be permitted to cause inadequate weight to be given to the objective facts of the offending.

184 For each of the offences I have to determine what I consider to be an appropriate sentence. In the case of each of the offences I have to consider all possible alternatives to a sentence of imprisonment. I must not sentence Mr Einfeld to imprisonment unless I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. If I am not satisfied that no penalty other than imprisonment is appropriate, then I must impose an alternative penalty not involving imprisonment, such as a community service order or a good behaviour bond. If, having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate, then I have to impose a sentence of imprisonment.

185 If I impose a sentence of imprisonment, I have to determine what should be the length of the term of imprisonment and then decide how a term of imprisonment of that length should be served, whether by some alternative to full-time custody, such as a suspended sentence, home detention or periodic detention, or by full-time custody.

186 Counsel for Mr Einfeld submitted, with respect to each of the offences, that I should not be satisfied that no penalty other than imprisonment is appropriate and that I should impose a penalty not involving imprisonment. Alternatively, counsel submitted that, if, having considered all possible alternatives to a sentence of imprisonment, I am satisfied that no penalty other than imprisonment would be appropriate, I should impose only a short term of imprisonment and I should order that the sentence be served by some alternative to full-time custody and not by full-time custody.

187 As to the first offence, I take into account the facts of the offence in the Crown statement, my further findings about the objective facts of the offence and my findings about the subjective circumstances of Mr Einfeld, including my findings about his career in the law, his character and his voluntary activities, his age, his physical and mental health, the extra-curial punishment he has sustained, his contrition and the likelihood of any sentence of imprisonment being served on protection in more than usually onerous conditions of custody. I also take into account the principles of sentencing I have stated.

188 Having considered all possible alternatives to a sentence of imprisonment for the first offence, I am satisfied that no penalty other than imprisonment is appropriate. I considered that the length of the term of the sentence for the first offence, after taking into account the plea of guilty, should be one year nine months.

189 As to how that term of imprisonment should be served, as the term of the sentence exceeds 18 months it would not be possible, even if it was otherwise appropriate, to make a home detention order. Mr Einfeld is not a suitable subject for a periodic detention order, even if it was otherwise appropriate. I recognise that a sentence of imprisonment the execution of which is suspended can be a significant and effective punishment; nevertheless, it is significantly more lenient than a sentence of imprisonment to be served in full-time custody. I have concluded, after considering all possible alternatives, that the sentence of imprisonment for the first offence should be served in full-time custody. I do not consider that the circumstances relied on by counsel for Mr Einfeld, such as the minor nature of the charge against him in the proceedings in which the offence of perjury was committed, Mr Einfeld’s favourable subjective circumstances and the extra-curial punishment he has suffered, either individually or in combination, amount to very special circumstances such that the offence of perjury committed by Mr Einfeld should not be punished by a sentence of imprisonment to be served in full-time custody.

190 I will deal a little later in these remarks with the question of how the head sentence of one year nine months should be divided between a non-parole period and a balance of the term.

191 As to the second offence, I take into account the facts of the offence in the Crown statement, my further findings about the objective facts of the offence and my findings about the subjective circumstances of Mr Einfeld, which are the same as for the first offence. I also take into account the principles of sentencing I have stated.

192 Earlier in these remarks I rejected a submission made on behalf of Mr Einfeld that I was bound by an arrangement which it was submitted had been reached between the Director of Public Prosecutions Office and Mr Einfeld’s legal representative that the second offence was merely an extension of the first and that there was substantial commonality between the criminality in the first offence and the criminality in the second offence.

193 Contrary to any alleged agreement, I consider that there was substantial separate criminality in the second offence. Indeed, I consider the second offence more objectively serious than the first offence. There was more calculating criminality in devising the 20 page statement of 23 August 2006 with its many falsehoods than there was in giving the fairly brief perjured evidence on 7 August 2006. The preparation and handing over of the statement to police who Mr Einfeld knew were conducting an investigation into whether he had committed the earlier offence, demonstrated a contumelious disregard for the proper operation of the criminal justice system. As I noted near the beginning of these remarks, the maximum penalty for the offence of perverting the course of justice is greater than the maximum penalty for the offence of perjury.

194 Having considered all possible alternatives to a sentence of imprisonment, I am satisfied that no penalty other than imprisonment is appropriate.

195 I have concluded that the length of the sentence for the second offence, after taking into account the plea of guilty and with slight rounding off so as to avoid an odd number of weeks, should be two years three months.

196 I consider that the sentence of imprisonment for the second offence should, because of the objective seriousness of the offence, be served in full-time custody. In any event, because of the length of the sentence it would not be possible, even if it was otherwise appropriate, to make a home detention order or an order that execution of the sentence be suspended and, as already noted, Mr Einfeld is not a suitable subject for a periodic detention order.

197 I will deal a little later in these remarks with the question of how the head sentence of two years three months should be divided between a non-parole period and a balance of the term.

198 Having decided that a sentence of imprisonment should be imposed for each offence, I have to consider questions of totality and whether the terms of imprisonment should be fully concurrent, fully cumulative or partly concurrent and partly cumulative, in order that the overall sentence should justly reflect the overall criminality.

199 I have rejected a submission made on behalf of Mr Einfeld that the sentence for the second offence should be concurrent or substantially concurrent with the sentence for the first offence. I consider that there should be separate effective punishment for both offences. However, the two offences were undoubtedly connected and to make the sentence for the second offence fully cumulative on the sentence for the first offence would produce an overall sentence disproportionate to the overall criminality. I have decided that the sentence for the second offence should be partly cumulative on the sentence for the first offence and should commence nine months after the commencement of the sentence for the first offence. The sentence for the first offence will commence today, Mr Einfeld having been at liberty on bail and not having served any pre-sentence custody.

200 The question arises whether I should find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act.

201 Because there is to be partial accumulation of the second sentence, I should find special circumstances in relation to the second sentence and set a non-parole period for that sentence such that the balance of the term exceeds one-third of the non-parole period, so that the total non-parole periods are no more than three-quarters of the total head sentences.

202 There remains the question of whether I should find special circumstances on any other basis.

203 Counsel for Mr Einfeld submitted that I should find special circumstances in Mr Einfeld’s age, that any sentence of imprisonment would be his first time in prison, the need for protective custody, Mr Einfeld’s poor physical and mental health and the likelihood of his health deteriorating while he was in custody.

204 I have already taken all of these matters into account and given them substantial weight in determining the head sentences for the offences and I am mindful that sentencing judges have been cautioned against double counting for such matters, firstly in determining what head sentence should be set and secondly in finding special circumstances so that the balance of the term of the sentence exceeds one-third of the non-parole period.

205 However, counsel for the Crown at the sentence hearing did not oppose the making of a finding of special circumstances based on these matters and I consider that I should find special circumstances in these matters. However, because I have already taken these matters into account in determining the head sentences, the allowance for this finding of special circumstances will be fairly small.

206 I consider that I should divide the head sentence of one year nine months for the first offence of perjury into a non-parole period of 14 months and a balance of the term of seven months.

207 To allow for both of the bases on which I have found special circumstances in relation to the sentence for the second offence of perverting the course of justice, I consider that I should divide the head sentence of two years three months for the second offence into a non-parole period of one year three months and a balance of the term of one year.

208 The overall effect of the two sentences will be that Mr Einfeld is sentenced to head sentences totalling three years and non-parole periods totalling two years and a balance of the term of the sentence for the second offence, which will be the effective parole period, of one year.

209 Marcus Einfeld stand up.

For the offence of perjury I sentence you to a non-parole period of imprisonment of one year two months commencing on 20 March 2009 and expiring on 19 May 2010 and a balance of the term of seven months commencing on 20 May 2010 and expiring on 19 December 2010.

For the offence of perverting the course of justice I sentence you to a non-parole period of imprisonment of one year three months commencing on 20 December 2009 and expiring on 19 March 2011 and a balance of the term of one year commencing on 20 March 2011 and expiring on 19 March 2012.

I direct that you be released on parole on 19 March 2011.

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LAST UPDATED:
20 March 2009