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The Queen v Goldberg [2006] NZCA 81 (4 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA10/05

THE QUEEN

v

GLEN DALLAS GOLDBERG

Hearing: 15 and 16 March 2006

Court: Chambers, Ronald Young and Allan JJ

Counsel: P H H Tomlinson for Appellant
S N Haszard for Crown

Judgment: 4 May 2006 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

Table of Contents

Para No

Attempting to pervert the course of justice [1]
Issues on the appeal [7]
Mr Goldberg’s instructions to Mr Kaye [11]
Mr Goldberg’s evidence [13]
Ms Cox’s evidence [19]
Mr Kaye’s evidence [20]
Mr Leabourn’s evidence [22]
Mr Lawry’s evidence [29]
Analysis of the evidence [30]
Sentence [38]
Total sentence manifestly excessive? [43]
The MPI [56]
Allowance for time spent on remand [61]

Attempting to pervert the course of justice

[1] In July 2004, the appellant, Glen Goldberg, was found guilty on a number of charges, including two counts of wilfully attempting to pervert the course of justice, contrary to s 117 of the Crimes Act 1961. Mr Goldberg now appeals against his conviction on those two counts (counts 4 and 5 in the indictment).
[2] Counts 4 and 5 concerned events which took place in January 2004. At that time Mr Goldberg was in prison, awaiting trial on a rape count. The Crown alleged that Mr Goldberg wrote three letters to himself. Each of the letters purported to come from the rape complainant. The letters purported to make threats against Mr Goldberg and his girlfriend. The letters, if they had been from the complainant, were consistent only with her complaint of rape having been false. It was the Crown case that Mr Goldberg gave these letters (two on one occasion, the third on another) to Deborah Cox, Peter Kaye’s assistant, with instructions that Mr Kaye give the letters to the police for investigation. Mr Kaye, who was at that time Mr Goldberg’s lawyer with respect to the pending rape trial, carried out those instructions.
[3] The police later determined that the letters (which we shall call "the January letters") had not come from the complainant but rather had been written by Mr Goldberg himself as part of a wilful attempt to pervert the course of justice. They accordingly charged Mr Goldberg under s 117 of the Crimes Act.
[4] At the July 2004 trial, Mr Goldberg’s defence to counts 4 and 5 was that he had not written the January letters and that they had been legitimately received by him. His instructions to his then counsel, Mr Leabourn, were to challenge the Crown contention that the use of the January letters was an attempt to pervert the course of justice. Mr Goldberg’s defence was that he had simply, through Mr Kaye, passed the letters on to the Crown to allow an opportunity for them to be investigated.
[5] It is obvious that the jury, by their findings of guilt on charges 4 and 5, did not accept Mr Goldberg’s defence.
[6] In November 2004 the trial judge, Laurenson J, sentenced Mr Goldberg to six years’ imprisonment and required him to serve a minimum period of imprisonment of 32 months. Mr Goldberg also appeals against that sentence.

Issues on the appeal

[7] There is only one issue on the appeal against conviction. Mr Goldberg now alleges that he never gave instructions for Mr Kaye to pass on the January letters to the Crown or the police. He said in an affidavit filed in support of his appeal:

I never gave instructions for these letters to be handed to the Crown or the police. I did seek some investigation be done by private investigators. I never wanted them handed to the Crown or to the police.

[8] Mr Tomlinson, who appeared for Mr Goldberg on this appeal, submitted that Mr Kaye’s actions in handing the January letters over to the Crown were in breach of his instructions and in breach of his obligations to maintain client privilege. This led, he submitted, to a miscarriage of justice. Mr Kaye denies that he breached his instructions. The issue, therefore, is the nature of Mr Goldberg’s instructions to Mr Kaye.
[9] Mr Tomlinson raised three issues on the appeal against sentence. First, he submitted that the overall sentence of six years’ imprisonment was manifestly excessive. Secondly, he submitted that this was not an appropriate case for the imposition of a minimum period of imprisonment (an "MPI"). Thirdly, he submitted that the judge should have given a concession for the time Mr Goldberg spent on remand with respect to the rape charge.
[10] We shall consider the issues in turn.

Mr Goldberg’s instructions to Mr Kaye

[11] It is perhaps helpful if we begin with a chronology:

November 2002	Alleged rape of complainant
13 October 2003	Trial 1, resulting in a hung jury. Appellant remanded in custody to await new trial.
23 December 2003-9 January 2004	Mr Goldberg sends two letters to a woman, asking her to give false evidence with respect to his retrial and offering a financial reward for such evidence. These two letters subsequently form the basis of counts 2 and 3 in the indictment.
January 2004	Mr Goldberg hands the January letters to Ms Cox.
8 March 2004	Trial 2 of the rape charge, also resulting in a hung jury.
19 March 2004	New charges laid with respect to the various attempts to pervert the course of justice.
July 2004	Trial 3, relating to the new charges. Appellant found guilty on all charges bar one.
12 October 2004	The Auckland Crown Solicitor writes to the Solicitor-General with a view to his ordering a stay on the rape charge; stay subsequently granted.
30 November 2004	Appellant sentenced to six years’ imprisonment.

[12] Mr Goldberg waived privilege with respect to his dealings with Mr Kaye and Mr Leabourn, who was Mr Goldberg’s counsel not only in trial 3 but also in trial 2. (Mr Kaye ended up being unable to represent Mr Goldberg in trial 2 owing to other commitments; he handed the brief on to Mr Leabourn.) With respect to the appeal against conviction, the Crown initially filed affidavits by Ms Cox and Messrs Kaye and Lawry. (The last prosecuted for the Crown in trials 1 and 2.) All deponents except Mr Lawry were cross-examined.

Mr Goldberg’s evidence

[13] Mr Goldberg’s affidavit in support of his appeal was very brief. The essence of it was as set out at [7] above. Mr Goldberg in his oral evidence contradicted and greatly expanded on what he had said in his affidavit. We deal with the contradiction first. As quoted at [7] above, Mr Goldberg said in his affidavit that he had instructed Mr Kaye to have the January letters investigated by private investigators. But in cross-examination he said that his instructions to Mr Kaye were simply to "keep [the letters] on the file". The following exchange took place:

What did you expect [Mr Kaye] to do with the letters?...Hold on to them. I had no other instructions but to hold on to them.
Presumably, Mr Goldberg, you wanted him to use them to assist you in your defence?...I did not instruct the use of them in my case at all.
Your instructions at that time you gave Deborah Cox the letters, you wanted Mr Kaye to use them in your defence, didn’t you?...Not in my court case, no.
So far as you were concerned, they didn’t have any particular relevance to the court case that was coming up?...No.
So exactly what was the point then in handing the letters on if they had no relevance?...I wanted Peter Kaye to have a bit more input into my case. I felt that I wasn’t really getting the help that I needed.

[14] Later in cross-examination Mr Goldberg was asked whether he wanted Mr Kaye to show the January letters to a private investigator. Mr Goldberg answered, "It wasn’t my instructions to show them to an investigator, no." That was, of course, contrary to what he had said in his affidavit.
[15] Mr Haszard, for the Crown on this appeal, asked Mr Goldberg what he believed the provenance of the January letters to be. Mr Goldberg said that the January letters had in fact been sent to him and received by him. But he said that he had never believed the letters had been written by the complainant; he said that he thought the letters had been sent to him by "associates". In light of his admission that he had never believed the letters to be genuine, he was asked, "Well, in that event, what possible relevance could they have had to your case?" He answered, "None whatsoever."
[16] Mr Goldberg said that he first found out that the Crown had the January letters on the first morning of trial 2. He said that he "was shocked" to find that the Crown had the letters. He said that he had expressed that shock to Mr Leabourn "several times". He said that he had told Mr Leabourn that he had never instructed Mr Kaye to pass the letters on.
[17] Mr Goldberg accepted that he had never discussed with Mr Leabourn any challenge to the January letters coming into evidence in trial 3. It was put to Mr Goldberg that an explanation for Mr Leabourn’s lack of challenge to the admissibility of the January letters in trial 3 might be that he had never discussed the "alleged wrongful acts of Mr Kaye" with Mr Leabourn until after his conviction in trial 3. Mr Goldberg disagreed with that proposition. He said:

No, [Mr Leabourn] knew prior to the trial because I instructed him to call Peter Kaye and Deborah Cox in regards to the departing of those documents.
How then did Deborah Cox’s evidence come in by consent at [trial 3]?...Hugh [Leabourn] said that he couldn’t examine his own people in his employ or his business partner because it would be a conflict of interest, and he said that the affidavit of Ms Cox was very brief and it will be presented as a hand up and that’s what I consented to, was it being a hand up.

[18] After Mr Goldberg had completed his evidence, it seemed to the bench that Mr Goldberg’s complaint was not just about Mr Kaye; if Mr Goldberg’s account were true, then Mr Leabourn had failed properly to protect Mr Goldberg’s interests in trial 3 by failing to challenge the admissibility of evidence relating to the January letters and by failing to call Mr Kaye (whether on a voir dire or in the trial itself). We pointed this out to Mr Tomlinson, who agreed, on further reflection, that the complaint also involved Mr Leabourn. Counsel then agreed that it would be necessary for us to hear from Mr Leabourn as well. We reconvened on 16 March. Overnight Mr Leabourn prepared an affidavit. He was then cross-examined on 16 March.

Ms Cox’s evidence

[19] We turn now to the Crown’s evidence. Ms Cox was the first witness to be cross-examined. She explained that she was in January 2004 Mr Kaye’s personal assistant. One of her roles as Mr Kaye’s personal assistant was to visit his clients in prison to give them documents and information and to receive from them documents, information, and instructions, which she then passed on to Mr Kaye. Her evidence was that she had visited Mr Goldberg in January 2004 at the Auckland Central Remand Prison. She picked up the January letters on two different occasions. On the first occasion she said Mr Goldberg had instructed her to give the letters he had received (and their respective envelopes) to Mr Kaye so that Mr Kaye could hand them to the Crown or the police. Ms Cox said that she gave the letters to Mr Kaye, passing on Mr Goldberg’s instructions. Mr Kaye then told her to contact Mr Lawry, who was acting for the Crown. In due course, a police officer came and uplifted the letters and the envelopes from Mr Kaye’s chambers.

Mr Kaye’s evidence

[20] Mr Kaye’s evidence was in complete contrast to Mr Goldberg’s. He said that, before he gave the letters to the Crown, he had discussed with Mr Goldberg the wisdom of that course. Mr Kaye said:

I do recall a conversation [with Mr Goldberg] about whether or not he was sure the letters should go to the prosecution or I recall discussing briefly with him whether we should sit on them and use them in cross-examination, for example. But he was always very clear to me that those letters were to go to the prosecution because he did not want this matter [the rape charge] to go to court and that was said more than once.

[21] We had the following exchange with Mr Kaye:

When you had the discussions with Mr Goldberg about the letters, or it may have been at that stage the letter, I’m not sure which, and what you were to do with it or them, did he lead you to believe that the letter or letters were genuine?...Yes, definitely.
So that their purpose so far as you were aware was possible use against the complainant at the trial or to put the trial off altogether?...To persuade the prosecution to drop the case so that the trial would not proceed. He did not want to go to court.

Mr Leabourn’s evidence

[22] Mr Leabourn explained that he had been instructed to act for Mr Goldberg in trial 2 approximately ten days prior to that trial. His involvement came about because Mr Kaye was involved in another trial which was running longer than expected. Mr Leabourn said that he saw Mr Goldberg "on numerous occasions" in the week proceeding the commencement of trial 2, as part of his preparation for that trial. Mr Leabourn said that Mr Kaye had advised him, when handing over the brief, that the January letters "had been passed on to the police by arrangement with Mr Goldberg prior to the trial so that the police could undertake investigations into the authenticity of them and take any measures necessary if they were discovered to be completed by the complainant or any persons linked to the complainant". Mr Leabourn continued:

[7] Mr Kaye also advised me that the Crown had given an undertaking that any findings in respect of these documents would be communicated prior to the trial commencing so that instructions could be taken as to the use of the documents. It was always my impression that the documents had been passed on to the Crown at the request of Mr Goldberg so that the complainant’s credibility would be undermined and the trial would not proceed at all.
[8] On my first meeting with Mr Goldberg at the Auckland Central Remand Prison I remember him asking me about the letters and what the police reaction was in relation to them. I gained the impression from him that he believed the existence of these letters would result in a quick termination of the proceedings and that the trial would not go ahead. I explained to him at the time that the letters were with the Crown and that the Crown had given an assurance that we would receive a report prior to the trial as to the result of their investigation. Mr Goldberg was happy with this explanation.

[23] Mr Lawry showed Mr Leabourn the result of the police investigation into the January letters on the morning of the first day of trial 2. Mr Leabourn said that the findings were "far from conclusive". Mr Leabourn formed the view that "it would not be useful...to use these letters". He discussed that strategy with Mr Goldberg. Mr Goldberg agreed with that tactic. Mr Leabourn then reached an agreement with Mr Lawry that the existence of the letters would not be mentioned during the course of the trial unless they were raised by the defence. As it turned out, the January letters were not referred to at all during trial 2.
[24] Mr Goldberg retained Mr Leabourn after he was charged with attempting to pervert the course of justice. Mr Leabourn said that, while he did receive instructions from Mr Goldberg to challenge certain proposed evidence, which instructions he carried out, he never received instructions to challenge the admissibility of the January letters. He said that he did not bring an application to challenge their admissibility as his instructions were "the letters had been legitimately received by Mr Goldberg through the prison system and he had no part in the preparation or authorship".
[25] He said that Mr Goldberg’s position was "that the letters had been written by someone other than himself, he had received them through the post and that his position was that they had been signed by friends of the complainant or a member of his own family". Mr Leabourn said that his instructions were "to challenge the Crown contention that the use of them was an attempt to pervert the course of justice and that Mr Goldberg had simply passed them on to the Crown through Mr Kaye to allow the opportunity for them to be investigated".
[26] Mr Leabourn said that "at a point late in the trial" Mr Goldberg changed his instructions. Mr Leabourn, in his affidavit, goes on:

[Mr Goldberg] then advised me he had never instructed Mr Kaye to pass those documents on to the police [and] that he had simply...given them to be placed on the file. By this stage the evidence of the Crown had been called. I had put the defence case to the witnesses and I was in a difficult position given the change in instructions. When I explained this to Mr Goldberg I also explained that his position was that he disputed that he had created them; therefore that was the approach that would be put before the jury. Mr Goldberg seemed to accept my position in relation to that and I was able to continue running the trial.

[27] In cross-examination, Mr Leabourn said that when he had first met Mr Goldberg Mr Goldberg was "interested to know what the police reaction was to the existence of [the January letters] now that they were aware of them". He told Mr Leabourn that he hoped that the January letters "might result in the trial itself not happening because the letters demonstrated some antipathy or some bias or inaccuracy in their [the complainant’s] evidence".
[28] During cross-examination, Mr Tomlinson put to Mr Leabourn a letter Mr Goldberg had written to Mr Leabourn. The letter is undated, but contains a date stamp showing "received 21/4/04". This would have been, therefore, after trial 2 and after the new charges had been laid with respect to the various attempts to pervert the course of justice. In the course of that letter, Mr Goldberg had said:

The threatening letters were given to Deborah, not the police like they said. I never asked for the police to collect them but asked Deborah to find out if the prosecution witnesses done them.

Mr Lawry’s evidence

[29] Mr Lawry gave evidence that he had been contacted by Mr Kaye and advised that he (Mr Kaye) "had a letter which the complainant had written to [Mr Goldberg]". Later Mr Kaye advised him "that a second letter had been received by [Mr Goldberg]". Mr Lawry arranged for the letters to be uplifted from Mr Kaye’s chambers and examined. As a result of the police investigations, Mr Lawry formed the view that the letters had not come from the complainant, but he could not at that time prove that they had necessarily been prepared by Mr Goldberg. He weighed up whether to make use of the letters. He decided that the Crown evidence on the rape charge was "strong". He considered "that there could quite properly be criticism of the Crown if [he] led the letters as part of the Crown case as they were not relevant to the credibility of the complainant". He therefore agreed, first with Mr Kaye and later with Mr Leabourn, that he would not lead the January letters as part of the Crown case.

Analysis of the evidence

[30] We are satisfied that Mr Goldberg did instruct Mr Kaye to pass on the January letters to the Crown or to the police. We are satisfied that he knew the letters were not genuine, either because he had prepared them himself or because he knew that they had been prepared by one of his associates. His intention was to persuade the police to drop the rape charge on the basis that the complainant was unreliable. Failing that, his counsel could use the letters in cross-examination to undermine the complainant’s credibility.
[31] These are our reasons for preferring the Crown evidence over Mr Goldberg’s. First, the evidence of Ms Cox and Messrs Kaye and Leabourn is very consistent – and diametrically opposed to Mr Goldberg’s. It is highly unlikely that all three of them are lying or mistaken or have colluded to give a false account of what happened.
[32] Secondly, Mr Goldberg’s account is contradictory. What he said in his oral evidence does not conform with what he said in his affidavit. That casts doubt on his credibility.
[33] Thirdly, on his account, there is no logical reason why he would ever have given the letters to Mr Kaye in the first place. He says now that he always knew they were not genuine and that they had no relevance whatsoever to his case or the charge he was facing. Why even give them to his lawyer? When taxed on this, he gave the feeble explanation that he did it because he "wanted Peter Kaye to have a bit more input in [his] case". That makes no sense at all. How was it possibly going to lead to that result? The account given by Mr Kaye and Mr Leabourn, on the other hand, is entirely logical: Mr Goldberg gave the letters to Mr Kaye to pass on because he wanted them investigated by the police. He hoped that the police would think that the complainant had written them, the police would then conclude that the complaint was false (as it clearly was, if the letters were genuine), and the rape charge would then be dropped.
[34] Fourthly, Mr Leabourn is a very experienced counsel. Had Mr Goldberg expressed the "shock" he said he experienced on day one of trial 2 when he found that Mr Kaye had given the January letters to the Crown, we have no doubt that Mr Leabourn would have challenged the admissibility of the January letters, just as he challenged other aspects of the evidence, in accordance with Mr Goldberg’s instructions.
[35] We accept Mr Leabourn’s evidence that the first time Mr Goldberg complained about Mr Kaye passing the January letters on to the police was during trial 3 after the Crown case had closed. We surmise that Mr Goldberg’s change of instructions – later withdrawn – came about because he realised that the Crown case that he had prepared the January letters was a strong one, which was likely to succeed (as indeed it did). This was a last minute attempt to come up with a new defence.
[36] In reaching that view as to when Mr Goldberg first raised his complaint against Mr Kaye, we have not overlooked the 21 April 2004 letter referred to at [28] above. We note that Mr Goldberg never referred to this letter when giving evidence; the first time it emerged was during Mr Leabourn’s cross-examination. We do not regard that letter as contrary to or undermining Mr Leabourn’s evidence. We do not know what document or assertion Mr Goldberg was responding to when he said in that letter that "the threatening letters were given to Deborah, not the police like they said". If there is a police document asserting that Mr Goldberg had given the January letters "to the police", then indeed such document is wrong (at least in a literal sense). Ms Cox and Mr Kaye both agree that the January letters were given to Ms Cox. It is also correct, even on the evidence of Ms Cox and Mr Kaye, that Mr Goldberg "never asked for the police to collect them". How Mr Kaye got the letters to the authorities was left as a matter for him. The assertion that Mr Goldberg "asked Deborah to find out if the prosecution witnesses done them" is, of course, exactly in line with Mr Kaye’s evidence. It is quite inconsistent with the evidence Mr Goldberg now gives that nothing was to be done with the letters and that they were to sit on the file. In short, therefore, the 24 April 2004 letter in no way undermines Mr Leabourn’s evidence.
[37] Given our rejection of Mr Goldberg’s complaint against Messrs Kaye and Leabourn, the appeal against conviction must be dismissed.

Sentence

[38] Laurenson J sentenced Mr Goldberg to four years’ imprisonment (total) on the four charges of wilfully attempting to pervert the course of justice. (For convenience, we shall refer to these four charges as "the PCJ charges".) Those four charges were counts 4 and 5 (which we have been discussing in the appeal against conviction) and counts 2 and 3 (which related to Mr Goldberg’s attempts to persuade a woman to give false evidence in return for a financial reward). Mr Goldberg was also found guilty of five charges of acting in contravention of a protection order. (We shall call these charges "the protection order charges".) These charges were brought under ss 19(2)(e) and 49(1)(a) of the Domestic Violence Act 1995 and constituted counts 6 to 10 in the indictment. Laurenson J sentenced Mr Goldberg to two years’ imprisonment (total) on those five charges. Those sentences he made cumulative on the four year sentences, making a total term of imprisonment of six years. See sentencing notes, HC AK CRI 2004-090-002122 30 November 2004.
[39] The judge then turned to consider whether an MPI should be imposed under s 86 of the Sentencing Act 2002. The judge was uncertain whether he should apply s 86 as it stood at the date of the offending or s 86 following its amendment by s 7 of the Sentencing Amendment Act 2004. The new s 86 came into force from 7 July 2004, after the offending but prior to sentencing. The judge held that it did not matter, in his view, which version of s 86 applied, as Mr Goldberg’s offending was such as to justify an order that an MPI be imposed.
[40] His Honour considered that only the PCJ offending warranted a s 86 order. With respect to the sentences on the PCJ charges, he imposed the maximum MPI, namely two-thirds of the sentence or 32 months’ imprisonment. He made no order with respect to the sentences imposed on the protection order charges. The judge expressed the net result thus (at [67]):

The net result is that you are sentenced to an effective total sentence of six years’ imprisonment, of which four years is subject to a minimum period of imprisonment of 32 months.

[41] Although the judge did not expressly so state, it is to be assumed that the sentences on the protection order charges were to carry the standard statutory non-parole periods of one-third i.e. eight months. What it appears the judge therefore intended is a minimum period of imprisonment of 40 months, 32 months being a s 86 MPI and the remaining eight months being the statutory one-third.
[42] We now turn to the three criticisms of the sentence advanced by Mr Tomlinson.

Total sentence manifestly excessive?

[43] Mr Tomlinson did not quarrel with the two year sentences imposed with respect to the five protection order charges. We do not need to go into the details of those five charges, as we are quite satisfied that, were they stand-alone charges, they would easily have justified a total sentence of two years’ imprisonment.
[44] Mr Tomlinson concentrated his firepower on the sentences imposed on the four PCJ charges. An overall period of imprisonment of four years on those charges was, Mr Tomlinson submitted, manifestly excessive, and led to a manifestly excessive total sentence of six years’ imprisonment.
[45] We have reviewed the four year sentence on the PCJ charges against the appellate authorities to which Mr Tomlinson referred us.
[46] The first was R v Clutterbuck CA372/99 17 November 1999, a decision to which Laurenson J referred in his sentencing notes. Mr Clutterbuck had been sentenced to 12 months’ imprisonment for attempting to pervert the course of justice by making a threat to his former partner to compel her to withdraw her application for a protection order. This court upheld that sentence. But the circumstances of Clutterbuck were far removed from the present case.
[47] First, here Mr Goldberg was found guilty of attempting to pervert the course of justice on four separate occasions, not once. The offending disclosed by the January letters was very sophisticated. Indeed, the police initially were not sure that Mr Goldberg had written the January letters himself. It was by no means impossible that Mr Goldberg’s attempt to pervert the course of justice might have succeeded.
[48] Secondly, Mr Goldberg had an appalling record, which Laurenson J correctly considered a "most disturbing aggravating factor" in terms of s 9(1)(j) of the Sentencing Act. Mr Goldberg had 191 previous convictions. Of those, 29 were for contravention of protection orders between 1997 and 2001. He had two convictions already for attempting to pervert the course of justice on two separate occasions in 1996. The judge also identified 37 other convictions between 1987 and 2001 which arose directly from some form or other of harassment. The judge noted that Mr Goldberg’s previous criminal history was indicative of "large scale offending" which had taken place "almost continuously over the last 17 years of [Mr Goldberg’s] life". He also said that the offending was notable "principally for various forms of criminal harassment of other people and dishonesty".
[49] Thirdly, the psychiatric and psychological reports the judge had available to him made very unhappy reading. The specialists concluded that Mr Goldberg’s personality problems in combination with longstanding criminal behaviour led to "the risk for reoffending in relationship to intrusive and unwanted behaviour towards women [being] very high". We consider that Laurenson J was entirely justified in his conclusion that this case was "in a very disturbing and special category". Mr Goldberg’s situation contrasted significantly with Mr Clutterbuck’s; the latter was a hopeless drug addict who was finally making significant progress on a methadone programme. This court specifically commended Mr Clutterbuck’s "successful efforts to turn his life around in every respect" (at [15]), but nonetheless considered that a 12 month period of imprisonment was appropriate given the "serious nature" of the crime and "the need to deter others from similar actions".
[50] Mr Tomlinson’s next case was R v Hillman, now reported in [2005] 2 NZLR 681n (CA) though decided in 1992. In that case, Mr Hillman was found guilty of attempting to pervert the course of justice by attempting to persuade the complainant to withdraw her complaint of assault which she had earlier made to the police. This court reduced the sentence to an effective 18 months’ imprisonment: at [7]. We do not consider the present sentence as out of line with Hillman. Again, Hillman involved a single incident of attempting to pervert the course of justice; here we had four separate incidents. As well, Mr Hillman’s offending did not have the serious aggravating features found here.
[51] Mr Tomlinson’s other two cases were R v Barratt CA164/01 27 August 2001 and R v Haraki CA425/99 2 February 2000. The offending in the former was much less serious than here. The latter case involved a multitude of offending which makes the sentence of nine months’ imprisonment for attempting to pervert the course of justice rather meaningless.
[52] Mr Tomlinson has not persuaded us that the four year sentence for the PCJ charges was outside the available range, given the particularly aggravating factors present in this case.
[53] We have also done a cursory survey of English appellate authorities for like offending. Laurenson J’s sentence appears not to be out of line with them. See, for instance:

(a) R v Williams [1997] 2 Cr App R (S) 221: two years’ imprisonment upheld for writing a threatening letter to a witness from prison;

(b) R v Edmonds [1999] 1 Cr App R (S) 475: the Court of Appeal imposed a sentence of three years’ imprisonment on a man who threatened violence towards a young woman who had reported him to the police and damaged her property.

[54] We are also not persuaded that the total sentence of six years’ imprisonment was outside the available range. This was very serious offending involving three different victims – two of whom were very young women. The attempts to pervert the course of justice were made by a man who has an appalling record of harassing others and who has in the past, in like manner, attempted to pervert the course of justice.
[55] The appeal against the nominal sentence must fail.

The MPI

[56] The correct section was the original s 86: Hall’s Sentencing (looseleaf ed) at [SA86.1A(b)] and R v Chadderton [2004] NZCA 295; (2004) 21 CRNZ 566 (CA). (Chadderton was decided after the sentencing in this case.)
[57] Mr Tomlinson submitted that the judge had been wrong to impose an MPI; the facts of this offending, in Mr Tomlinson’s submission, were not out of the ordinary. The standard statutory MPI of one-third (two years) should have applied.
[58] The judge correctly applied the criteria of the original s 86. He concluded that the circumstances of the PCJ offending were sufficiently serious to justify an MPI longer than the standard one-third. He considered that the circumstances took the offending "out of the ordinary range of offending of a particular kind". He thought the offending to be "in a quite unique category", when viewed against all the background circumstances. That view was open to the judge. We do not regard this offending as being other than extremely serious of its type.
[59] We decline to interfere with the judge’s MPI order. Mr Tomlinson has not established that the judge misapplied the test or has otherwise exercised his discretion in a plainly wrong manner.
[60] For the avoidance of doubt, we confirm that the non-parole period for the sentences on the PCJ charges is 32 months, pursuant to s 86(1) of the Sentencing Act. The non-parole period for the sentences on the protection order charges is eight months, pursuant to s 84(5)(a) of the Parole Act 2002. The non-parole period of the total sentence of six years’ imprisonment ("a long-term notional single sentence") is the total of those two non-parole periods, namely 40 months’ imprisonment: see s 84(4) of the Parole Act.

Allowance for time spent on remand

[61] Mr Tomlinson’s third point was that the judge erred in failing to give credit for the five months Mr Goldberg spent in prison on remand between the end of trial 1 (October 2003) and the laying of the PCJ charges (March 2004). Mr Leabourn had suggested to Laurenson J that credit should be given for that. Laurenson J responded to this submission at [39](e) of his sentencing notes:

...I have concluded after some considerable thought that you should not be entitled to any concession in this regard. The remand in custody was assessed on the merits applying at that time, notwithstanding that, eventually, you were acquitted. I do not see that the consequences which followed from that should be imported into the considerations involved in the present sentencing.

[62] It is apparent that Laurenson J thought that Mr Goldberg was eventually acquitted on the rape charge. This erroneous view was repeated by Mr Tomlinson in his written submissions. Mr Goldberg was not acquitted: the jury in trial 2, like the jury in trial 1, were not able to agree. The Solicitor-General ultimately entered a stay in respect of the rape charge, but only after the present case had been determined. One can surmise that Laurenson J’s rejection of Mr Leabourn’s submission would have been all the more forceful had he correctly understood the fate of the rape charge.
[63] On appeal before us, Mr Tomlinson repeated Mr Leabourn’s submission. He submitted that it seemed "particularly unfair not to take into account remand time when the matters are related,... particularly...when a person is acquitted of the principal charge for which he [was] on remand".
[64] Like Laurenson J, we do not accept this submission, for which no authority was cited. In effect, Mr Tomlinson’s submission amounts to a proposition that, if an offender is remanded in custody on a charge on which he is not ultimately convicted, the time spent on remand becomes a deposit in that offender’s sentencing bank, a deposit on which the offender is later entitled to draw in reduction of the debt he later incurs to society as a consequence of further offending. Such a proposition has no legislative, judicial, or philosophical basis.
[65] There will be many people who spend time on remand and who are subsequently acquitted. It has never been suggested that they can call on that remand time to reduce a subsequent sentence. The claim for such reduction is all the weaker where the offender was not acquitted but the jury was hung. In some ways Mr Goldberg has been lucky: the Solicitor-General determined that he should not have to face a third trial on the rape charge.
[66] The appropriate remedy for those who have wrongly spent time in prison and who later establish their innocence is compensation pursuant to the Government’s scheme for ex gratia payments for wrongful convictions. Mr Goldberg, having never been acquitted on the rape charge and having never established his innocence on that charge, is clearly not entitled to compensation for the five months spent on remand in relation to the rape charge.
[67] Of course, Mr Goldberg is automatically entitled to credit for the time spent on remand from the date on which the PCJ charges were laid.
[68] In summary, therefore, we agree with Laurenson J that no reduction was required with respect to the October 2003-March 2004 remand period.
[69] All challenges on sentence fail, with the consequence that the appeal against sentence must also be dismissed.

Solicitors:
Peter H H Tomlinson, Auckland, for Appellant
Crown Law Office, Wellington

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URL: http://www.nzlii.org/nz/cases/NZCA/2006/81.html

[1]	In July 2004, the appellant, Glen Goldberg, was found guilty on a number of charges, including two counts of wilfully attempting to pervert the course of justice, contrary to s 117 of the Crimes Act 1961. Mr Goldberg now appeals against his conviction on those two counts (counts 4 and 5 in the indictment).
[2]	Counts 4 and 5 concerned events which took place in January 2004. At that time Mr Goldberg was in prison, awaiting trial on a rape count. The Crown alleged that Mr Goldberg wrote three letters to himself. Each of the letters purported to come from the rape complainant. The letters purported to make threats against Mr Goldberg and his girlfriend. The letters, if they had been from the complainant, were consistent only with her complaint of rape having been false. It was the Crown case that Mr Goldberg gave these letters (two on one occasion, the third on another) to Deborah Cox, Peter Kaye’s assistant, with instructions that Mr Kaye give the letters to the police for investigation. Mr Kaye, who was at that time Mr Goldberg’s lawyer with respect to the pending rape trial, carried out those instructions.
[3]	The police later determined that the letters (which we shall call "the January letters") had not come from the complainant but rather had been written by Mr Goldberg himself as part of a wilful attempt to pervert the course of justice. They accordingly charged Mr Goldberg under s 117 of the Crimes Act.
[4]	At the July 2004 trial, Mr Goldberg’s defence to counts 4 and 5 was that he had not written the January letters and that they had been legitimately received by him. His instructions to his then counsel, Mr Leabourn, were to challenge the Crown contention that the use of the January letters was an attempt to pervert the course of justice. Mr Goldberg’s defence was that he had simply, through Mr Kaye, passed the letters on to the Crown to allow an opportunity for them to be investigated.
[5]	It is obvious that the jury, by their findings of guilt on charges 4 and 5, did not accept Mr Goldberg’s defence.
[6]	In November 2004 the trial judge, Laurenson J, sentenced Mr Goldberg to six years’ imprisonment and required him to serve a minimum period of imprisonment of 32 months. Mr Goldberg also appeals against that sentence.

[8]	Mr Tomlinson, who appeared for Mr Goldberg on this appeal, submitted that Mr Kaye’s actions in handing the January letters over to the Crown were in breach of his instructions and in breach of his obligations to maintain client privilege. This led, he submitted, to a miscarriage of justice. Mr Kaye denies that he breached his instructions. The issue, therefore, is the nature of Mr Goldberg’s instructions to Mr Kaye.
[9]	Mr Tomlinson raised three issues on the appeal against sentence. First, he submitted that the overall sentence of six years’ imprisonment was manifestly excessive. Secondly, he submitted that this was not an appropriate case for the imposition of a minimum period of imprisonment (an "MPI"). Thirdly, he submitted that the judge should have given a concession for the time Mr Goldberg spent on remand with respect to the rape charge.
[10]	We shall consider the issues in turn.

[14]	Later in cross-examination Mr Goldberg was asked whether he wanted Mr Kaye to show the January letters to a private investigator. Mr Goldberg answered, "It wasn’t my instructions to show them to an investigator, no." That was, of course, contrary to what he had said in his affidavit.
[15]	Mr Haszard, for the Crown on this appeal, asked Mr Goldberg what he believed the provenance of the January letters to be. Mr Goldberg said that the January letters had in fact been sent to him and received by him. But he said that he had never believed the letters had been written by the complainant; he said that he thought the letters had been sent to him by "associates". In light of his admission that he had never believed the letters to be genuine, he was asked, "Well, in that event, what possible relevance could they have had to your case?" He answered, "None whatsoever."
[16]	Mr Goldberg said that he first found out that the Crown had the January letters on the first morning of trial 2. He said that he "was shocked" to find that the Crown had the letters. He said that he had expressed that shock to Mr Leabourn "several times". He said that he had told Mr Leabourn that he had never instructed Mr Kaye to pass the letters on.
[17]	Mr Goldberg accepted that he had never discussed with Mr Leabourn any challenge to the January letters coming into evidence in trial 3. It was put to Mr Goldberg that an explanation for Mr Leabourn’s lack of challenge to the admissibility of the January letters in trial 3 might be that he had never discussed the "alleged wrongful acts of Mr Kaye" with Mr Leabourn until after his conviction in trial 3. Mr Goldberg disagreed with that proposition. He said:

[23]	Mr Lawry showed Mr Leabourn the result of the police investigation into the January letters on the morning of the first day of trial 2. Mr Leabourn said that the findings were "far from conclusive". Mr Leabourn formed the view that "it would not be useful...to use these letters". He discussed that strategy with Mr Goldberg. Mr Goldberg agreed with that tactic. Mr Leabourn then reached an agreement with Mr Lawry that the existence of the letters would not be mentioned during the course of the trial unless they were raised by the defence. As it turned out, the January letters were not referred to at all during trial 2.
[24]	Mr Goldberg retained Mr Leabourn after he was charged with attempting to pervert the course of justice. Mr Leabourn said that, while he did receive instructions from Mr Goldberg to challenge certain proposed evidence, which instructions he carried out, he never received instructions to challenge the admissibility of the January letters. He said that he did not bring an application to challenge their admissibility as his instructions were "the letters had been legitimately received by Mr Goldberg through the prison system and he had no part in the preparation or authorship".
[25]	He said that Mr Goldberg’s position was "that the letters had been written by someone other than himself, he had received them through the post and that his position was that they had been signed by friends of the complainant or a member of his own family". Mr Leabourn said that his instructions were "to challenge the Crown contention that the use of them was an attempt to pervert the course of justice and that Mr Goldberg had simply passed them on to the Crown through Mr Kaye to allow the opportunity for them to be investigated".
[26]	Mr Leabourn said that "at a point late in the trial" Mr Goldberg changed his instructions. Mr Leabourn, in his affidavit, goes on:

[30]	We are satisfied that Mr Goldberg did instruct Mr Kaye to pass on the January letters to the Crown or to the police. We are satisfied that he knew the letters were not genuine, either because he had prepared them himself or because he knew that they had been prepared by one of his associates. His intention was to persuade the police to drop the rape charge on the basis that the complainant was unreliable. Failing that, his counsel could use the letters in cross-examination to undermine the complainant’s credibility.
[31]	These are our reasons for preferring the Crown evidence over Mr Goldberg’s. First, the evidence of Ms Cox and Messrs Kaye and Leabourn is very consistent – and diametrically opposed to Mr Goldberg’s. It is highly unlikely that all three of them are lying or mistaken or have colluded to give a false account of what happened.
[32]	Secondly, Mr Goldberg’s account is contradictory. What he said in his oral evidence does not conform with what he said in his affidavit. That casts doubt on his credibility.
[33]	Thirdly, on his account, there is no logical reason why he would ever have given the letters to Mr Kaye in the first place. He says now that he always knew they were not genuine and that they had no relevance whatsoever to his case or the charge he was facing. Why even give them to his lawyer? When taxed on this, he gave the feeble explanation that he did it because he "wanted Peter Kaye to have a bit more input in [his] case". That makes no sense at all. How was it possibly going to lead to that result? The account given by Mr Kaye and Mr Leabourn, on the other hand, is entirely logical: Mr Goldberg gave the letters to Mr Kaye to pass on because he wanted them investigated by the police. He hoped that the police would think that the complainant had written them, the police would then conclude that the complaint was false (as it clearly was, if the letters were genuine), and the rape charge would then be dropped.
[34]	Fourthly, Mr Leabourn is a very experienced counsel. Had Mr Goldberg expressed the "shock" he said he experienced on day one of trial 2 when he found that Mr Kaye had given the January letters to the Crown, we have no doubt that Mr Leabourn would have challenged the admissibility of the January letters, just as he challenged other aspects of the evidence, in accordance with Mr Goldberg’s instructions.
[35]	We accept Mr Leabourn’s evidence that the first time Mr Goldberg complained about Mr Kaye passing the January letters on to the police was during trial 3 after the Crown case had closed. We surmise that Mr Goldberg’s change of instructions – later withdrawn – came about because he realised that the Crown case that he had prepared the January letters was a strong one, which was likely to succeed (as indeed it did). This was a last minute attempt to come up with a new defence.
[36]	In reaching that view as to when Mr Goldberg first raised his complaint against Mr Kaye, we have not overlooked the 21 April 2004 letter referred to at [28] above. We note that Mr Goldberg never referred to this letter when giving evidence; the first time it emerged was during Mr Leabourn’s cross-examination. We do not regard that letter as contrary to or undermining Mr Leabourn’s evidence. We do not know what document or assertion Mr Goldberg was responding to when he said in that letter that "the threatening letters were given to Deborah, not the police like they said". If there is a police document asserting that Mr Goldberg had given the January letters "to the police", then indeed such document is wrong (at least in a literal sense). Ms Cox and Mr Kaye both agree that the January letters were given to Ms Cox. It is also correct, even on the evidence of Ms Cox and Mr Kaye, that Mr Goldberg "never asked for the police to collect them". How Mr Kaye got the letters to the authorities was left as a matter for him. The assertion that Mr Goldberg "asked Deborah to find out if the prosecution witnesses done them" is, of course, exactly in line with Mr Kaye’s evidence. It is quite inconsistent with the evidence Mr Goldberg now gives that nothing was to be done with the letters and that they were to sit on the file. In short, therefore, the 24 April 2004 letter in no way undermines Mr Leabourn’s evidence.
[37]	Given our rejection of Mr Goldberg’s complaint against Messrs Kaye and Leabourn, the appeal against conviction must be dismissed.

[38]	Laurenson J sentenced Mr Goldberg to four years’ imprisonment (total) on the four charges of wilfully attempting to pervert the course of justice. (For convenience, we shall refer to these four charges as "the PCJ charges".) Those four charges were counts 4 and 5 (which we have been discussing in the appeal against conviction) and counts 2 and 3 (which related to Mr Goldberg’s attempts to persuade a woman to give false evidence in return for a financial reward). Mr Goldberg was also found guilty of five charges of acting in contravention of a protection order. (We shall call these charges "the protection order charges".) These charges were brought under ss 19(2)(e) and 49(1)(a) of the Domestic Violence Act 1995 and constituted counts 6 to 10 in the indictment. Laurenson J sentenced Mr Goldberg to two years’ imprisonment (total) on those five charges. Those sentences he made cumulative on the four year sentences, making a total term of imprisonment of six years. See sentencing notes, HC AK CRI 2004-090-002122 30 November 2004.
[39]	The judge then turned to consider whether an MPI should be imposed under s 86 of the Sentencing Act 2002. The judge was uncertain whether he should apply s 86 as it stood at the date of the offending or s 86 following its amendment by s 7 of the Sentencing Amendment Act 2004. The new s 86 came into force from 7 July 2004, after the offending but prior to sentencing. The judge held that it did not matter, in his view, which version of s 86 applied, as Mr Goldberg’s offending was such as to justify an order that an MPI be imposed.
[40]	His Honour considered that only the PCJ offending warranted a s 86 order. With respect to the sentences on the PCJ charges, he imposed the maximum MPI, namely two-thirds of the sentence or 32 months’ imprisonment. He made no order with respect to the sentences imposed on the protection order charges. The judge expressed the net result thus (at [67]):

[41]	Although the judge did not expressly so state, it is to be assumed that the sentences on the protection order charges were to carry the standard statutory non-parole periods of one-third i.e. eight months. What it appears the judge therefore intended is a minimum period of imprisonment of 40 months, 32 months being a s 86 MPI and the remaining eight months being the statutory one-third.
[42]	We now turn to the three criticisms of the sentence advanced by Mr Tomlinson.

[43]	Mr Tomlinson did not quarrel with the two year sentences imposed with respect to the five protection order charges. We do not need to go into the details of those five charges, as we are quite satisfied that, were they stand-alone charges, they would easily have justified a total sentence of two years’ imprisonment.
[44]	Mr Tomlinson concentrated his firepower on the sentences imposed on the four PCJ charges. An overall period of imprisonment of four years on those charges was, Mr Tomlinson submitted, manifestly excessive, and led to a manifestly excessive total sentence of six years’ imprisonment.
[45]	We have reviewed the four year sentence on the PCJ charges against the appellate authorities to which Mr Tomlinson referred us.
[46]	The first was R v Clutterbuck CA372/99 17 November 1999, a decision to which Laurenson J referred in his sentencing notes. Mr Clutterbuck had been sentenced to 12 months’ imprisonment for attempting to pervert the course of justice by making a threat to his former partner to compel her to withdraw her application for a protection order. This court upheld that sentence. But the circumstances of Clutterbuck were far removed from the present case.
[47]	First, here Mr Goldberg was found guilty of attempting to pervert the course of justice on four separate occasions, not once. The offending disclosed by the January letters was very sophisticated. Indeed, the police initially were not sure that Mr Goldberg had written the January letters himself. It was by no means impossible that Mr Goldberg’s attempt to pervert the course of justice might have succeeded.
[48]	Secondly, Mr Goldberg had an appalling record, which Laurenson J correctly considered a "most disturbing aggravating factor" in terms of s 9(1)(j) of the Sentencing Act. Mr Goldberg had 191 previous convictions. Of those, 29 were for contravention of protection orders between 1997 and 2001. He had two convictions already for attempting to pervert the course of justice on two separate occasions in 1996. The judge also identified 37 other convictions between 1987 and 2001 which arose directly from some form or other of harassment. The judge noted that Mr Goldberg’s previous criminal history was indicative of "large scale offending" which had taken place "almost continuously over the last 17 years of [Mr Goldberg’s] life". He also said that the offending was notable "principally for various forms of criminal harassment of other people and dishonesty".
[49]	Thirdly, the psychiatric and psychological reports the judge had available to him made very unhappy reading. The specialists concluded that Mr Goldberg’s personality problems in combination with longstanding criminal behaviour led to "the risk for reoffending in relationship to intrusive and unwanted behaviour towards women [being] very high". We consider that Laurenson J was entirely justified in his conclusion that this case was "in a very disturbing and special category". Mr Goldberg’s situation contrasted significantly with Mr Clutterbuck’s; the latter was a hopeless drug addict who was finally making significant progress on a methadone programme. This court specifically commended Mr Clutterbuck’s "successful efforts to turn his life around in every respect" (at [15]), but nonetheless considered that a 12 month period of imprisonment was appropriate given the "serious nature" of the crime and "the need to deter others from similar actions".
[50]	Mr Tomlinson’s next case was R v Hillman, now reported in [2005] 2 NZLR 681n (CA) though decided in 1992. In that case, Mr Hillman was found guilty of attempting to pervert the course of justice by attempting to persuade the complainant to withdraw her complaint of assault which she had earlier made to the police. This court reduced the sentence to an effective 18 months’ imprisonment: at [7]. We do not consider the present sentence as out of line with Hillman. Again, Hillman involved a single incident of attempting to pervert the course of justice; here we had four separate incidents. As well, Mr Hillman’s offending did not have the serious aggravating features found here.
[51]	Mr Tomlinson’s other two cases were R v Barratt CA164/01 27 August 2001 and R v Haraki CA425/99 2 February 2000. The offending in the former was much less serious than here. The latter case involved a multitude of offending which makes the sentence of nine months’ imprisonment for attempting to pervert the course of justice rather meaningless.
[52]	Mr Tomlinson has not persuaded us that the four year sentence for the PCJ charges was outside the available range, given the particularly aggravating factors present in this case.
[53]	We have also done a cursory survey of English appellate authorities for like offending. Laurenson J’s sentence appears not to be out of line with them. See, for instance:

[56]	The correct section was the original s 86: Hall’s Sentencing (looseleaf ed) at [SA86.1A(b)] and R v Chadderton [2004] NZCA 295; (2004) 21 CRNZ 566 (CA). (Chadderton was decided after the sentencing in this case.)
[57]	Mr Tomlinson submitted that the judge had been wrong to impose an MPI; the facts of this offending, in Mr Tomlinson’s submission, were not out of the ordinary. The standard statutory MPI of one-third (two years) should have applied.
[58]	The judge correctly applied the criteria of the original s 86. He concluded that the circumstances of the PCJ offending were sufficiently serious to justify an MPI longer than the standard one-third. He considered that the circumstances took the offending "out of the ordinary range of offending of a particular kind". He thought the offending to be "in a quite unique category", when viewed against all the background circumstances. That view was open to the judge. We do not regard this offending as being other than extremely serious of its type.
[59]	We decline to interfere with the judge’s MPI order. Mr Tomlinson has not established that the judge misapplied the test or has otherwise exercised his discretion in a plainly wrong manner.
[60]	For the avoidance of doubt, we confirm that the non-parole period for the sentences on the PCJ charges is 32 months, pursuant to s 86(1) of the Sentencing Act. The non-parole period for the sentences on the protection order charges is eight months, pursuant to s 84(5)(a) of the Parole Act 2002. The non-parole period of the total sentence of six years’ imprisonment ("a long-term notional single sentence") is the total of those two non-parole periods, namely 40 months’ imprisonment: see s 84(4) of the Parole Act.

[62]	It is apparent that Laurenson J thought that Mr Goldberg was eventually acquitted on the rape charge. This erroneous view was repeated by Mr Tomlinson in his written submissions. Mr Goldberg was not acquitted: the jury in trial 2, like the jury in trial 1, were not able to agree. The Solicitor-General ultimately entered a stay in respect of the rape charge, but only after the present case had been determined. One can surmise that Laurenson J’s rejection of Mr Leabourn’s submission would have been all the more forceful had he correctly understood the fate of the rape charge.
[63]	On appeal before us, Mr Tomlinson repeated Mr Leabourn’s submission. He submitted that it seemed "particularly unfair not to take into account remand time when the matters are related,... particularly...when a person is acquitted of the principal charge for which he [was] on remand".
[64]	Like Laurenson J, we do not accept this submission, for which no authority was cited. In effect, Mr Tomlinson’s submission amounts to a proposition that, if an offender is remanded in custody on a charge on which he is not ultimately convicted, the time spent on remand becomes a deposit in that offender’s sentencing bank, a deposit on which the offender is later entitled to draw in reduction of the debt he later incurs to society as a consequence of further offending. Such a proposition has no legislative, judicial, or philosophical basis.
[65]	There will be many people who spend time on remand and who are subsequently acquitted. It has never been suggested that they can call on that remand time to reduce a subsequent sentence. The claim for such reduction is all the weaker where the offender was not acquitted but the jury was hung. In some ways Mr Goldberg has been lucky: the Solicitor-General determined that he should not have to face a third trial on the rape charge.
[66]	The appropriate remedy for those who have wrongly spent time in prison and who later establish their innocence is compensation pursuant to the Government’s scheme for ex gratia payments for wrongful convictions. Mr Goldberg, having never been acquitted on the rape charge and having never established his innocence on that charge, is clearly not entitled to compensation for the five months spent on remand in relation to the rape charge.
[67]	Of course, Mr Goldberg is automatically entitled to credit for the time spent on remand from the date on which the PCJ charges were laid.
[68]	In summary, therefore, we agree with Laurenson J that no reduction was required with respect to the October 2003-March 2004 remand period.
[69]	All challenges on sentence fail, with the consequence that the appeal against sentence must also be dismissed.