Cross v R

Grounds of Appeal

1. In his Notice, the applicant relied upon two grounds of appeal, namely that: 1. the sentencing Judge erred in allowing an extraneous or irrelevant matter to guide or affect him, namely, the telephone calls the applicant made to Ms Toni Carroll that she did not answer; and 2. the sentence was manifestly excessive in the circumstances of the applicant's case.

Facts

1. A Statement of Agreed Facts was tendered to the sentencing Judge. A brief summary of these facts is set out below.
2. The victim, Ms Carroll, was aged about 19 at the time of the primary offences. The applicant was then aged 32. They were in a relationship, and living together in a caravan in West Ballina.
3. The relationship was a violent one. An Apprehended Domestic Violence Order ("ADVO") was made on 14 November 2013 for a period of 12 months to protect Ms Carroll.
4. On 12 and 13 April 2014, while the ADVO was in place, the applicant assaulted Ms Carroll at their caravan. A report was made to the police. As a result, the applicant was charged with assault occasioning actual bodily harm and reckless wounding. He was charged with other related matters as well. Those other charges are of no present relevance.
5. As a consequence of being charged with the primary offences, the applicant was refused bail, taken into custody and held on remand. The matter was set down for a defended hearing at the Ballina Local Court on 30 May 2014. Ms Carroll, the victim, was the principal prosecution witness in those proceedings.
6. Between 6 May and 27 May 2014, the applicant, using the telephone at Grafton Correctional Facility where he was first held, and then at Cessnock Correctional Facility, called Ms Carroll on her mobile telephone. In accordance with the usual practice, those telephone calls were recorded by Corrective Services.
7. The Statement of Facts included the following paragraph, which was in essence a summary of the detail in the balance of the statement. It read: "Between 6 May and 27 May 2014, the offender called the victim from jail more than 100 times, however many of these calls were not answered. In a number of them, the offender either advised the victim to withdraw her statement, or alternatively to give false evidence in the proceedings, or otherwise not attend as a witness at the hearing. On several occasions, the offender would refer to the victim using the false name of 'Kate', instead of the victim's real name (Toni), in order avoid detection by Corrective Services."
8. The Statement of Facts then went on to include the actual words used in a number of the phone calls.
9. The sequence of phone calls commenced with a phone call between the applicant and a male friend. In that phone call, the applicant recounted to his friend that, having spoken to his lawyers, it had become apparent to him that if Ms Carroll "… turns around and … changes her story sort of in court and that, they'll let me out …" and "… you know … there's not much to sort of back it up, like if she turns around and says 'nah, you know, I had psychotic episode and that's what happened … and the police just pressured me into saying, making a statement, well then I'll be let out on that day".
10. This conversation set the scene for the phone calls which followed between the applicant and Ms Carroll. The first of these was on 6 May 2014. In that conversation the applicant suggested to Ms Carroll that she ought to tell the Court that she had a "psychotic episode".
11. Two days later, on 8 May 2014, the applicant again rang Ms Carroll pretending that he was talking to "Kate". During this conversation, the applicant said: "I was, I was talking to a few people and that, and apparently if Toni doesn't turn up at court, it gets thrown out". He went on to say: "And because she's in another State, they can't do anything". He further said: "Yeah, either that or she can sign a statutory declaration saying that she doesn't want to testify against me because it will be detrimental to our relationship". There was further conversation about how Ms Carroll could avoid giving evidence.
12. According to the Statement of Facts, the applicant tried to call Ms Carroll 10 times between 8 May and 10 May 2014. She did not answer those calls. He then telephoned his friend, Mr Weston, and asked him to speak with Ms Carroll because she was not answering her telephone.
13. On 10 May 2014, the applicant phoned Ms Carroll again. Ms Carroll answered the telephone. The call was described in this way in the Statement of Facts: "During the conversation, the victim told the offender she was going to have to go to court because the police won't give back their laptop and phone until after court. The offender said 'If you wanna, what happens if you go to court, you know what I mean, if thingo goes to court and gets on the stand and says 'I don't remember making that statement, I was under influence of drugs and alcohol at the time' it'll then, we're sweet'. The victim replied 'Mmmm'. The offender then said: 'Yeah, I just really want to get out'. The victim said: 'I think she knows that'. The offender said: 'Who?' Victim: 'Toni'."
14. On 15 May 2014, the applicant rang Ms Carroll and informed her that he had received the brief of evidence. Ms Carroll told him she did not know if she could help this time, and that she had to go to Court. The applicant responded: "So, you're gonna fuck me". He then said: "Like, if you just tell them, tell them that you were drinking, you know and with your, with your medication that you're on, it doesn't go down well with it, and you just had a psychotic episode". Further conversation took place about their past relationship. At the end of the call, Ms Carroll told the applicant that she would do what he asked of her, but that she was "moving on". She told him that when he got out of jail, he needed to get a job and start his life again.
15. According to the Statement of Facts, the applicant continued to call Ms Carroll on a daily basis.
16. A week before the hearing, in a telephone conversation on 23 May 2014, the applicant told Ms Carroll that he thought the police were "playing her" and that she would not get the laptop back even if she did attend court for the hearing. He then told her he had been thinking about the fact that he was going to lose another two years of his son's life, and that he would not see his grandparents before they died. This was a reference by him to the consequence of remaining in custody if convicted of the primary offences.
17. On the following day, a further telephone call occurred which had similar features. During that conversation, the applicant told Ms Carroll that he was going to spend two years "rotting in a cage", that he would not get to see his son grow up, that he was going to lose $25,000 on the course he was enrolled in, that he would lose his laptop, and that his physical and mental health had gone downhill. Following this, Ms Carroll replied "Alright, here's what I'm gonna say, OK. I'm gonna go to that court, and I'm going to tell the truth, and if the truth scares you then I'm sorry, but I'm gonna tell the truth, not for you, not for the Court, but for myself, alright".
18. Later the same day, the applicant rang again. Ms Carroll asked him to stop ringing her. The call was terminated. Less than 20 minutes later, the applicant telephoned again. He said: "Fucking hell. How can't you get it through your head that fucking that doing 2 years is not the fucking best thing". The applicant continued to call Ms Carroll on a number of occasions on and following that day. These calls contained a mixture of pleas and promises. In one call, the applicant promised to reward Ms Carroll by way of a house and a dog and weekends going horse-riding and fishing if she did not go to Court and give evidence against him.
19. Ms Carroll attended Court as required on 30 May 2014. The facts of the telephone calls were made known to the police and, as a consequence, the proceedings were adjourned. Ultimately, the applicant pleaded guilty to the two primary offences and was sentenced by the Local Court on 3 February 2015.

Proceedings on Sentence

1. The applicant pleaded guilty in the Lismore Local Court to the subject offence and, on 16 December 2014, was committed for sentence to the District Court.
2. In the District Court, the proceedings on sentence took place on 20 March 2015. The applicant was arraigned and pleaded guilty. The Crown tendered a bundle of documents including a Statement of Agreed Facts, which I have summarised above, the applicant's criminal history, Heilpern LCM's Remarks on Sentence in the Lismore Local Court when dealing with the primary offences, and a pre-sentence report dated 27 January 2015 that had been prepared for the purpose of the Local Court sentence.
3. The applicant did not place any material before the Court in the proceedings on sentence, nor did he give any evidence.
4. Both the lawyers appearing for the applicant and the Crown made relatively short oral submissions and referred the Court to previous cases of relevance on sentence.

Remarks on Sentence

1. His Honour delivered his Remarks on Sentence on the same day that submissions were made to him. He commenced by identifying the offence to which the applicant had pleaded guilty and the applicable maximum penalty. He then noted that it was accepted by the Crown that the applicant had entered his plea of guilty at the earliest opportunity, and indicated that he would provide a discount of 25% on any sentence which was to be imposed on account of the utilitarian value of the plea.
2. His Honour then summarised the Agreed Facts. He noted what had occurred in the Lismore Local Court when the applicant was sentenced for the two primary offences. He also noted that, at the time of committing the present offence, the applicant was subject to three bonds imposed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. One of those bonds had been imposed six months before the commencement of the series of conversations. His Honour also noted that the applicant was in custody because bail had been refused on the primary offences.
3. His Honour found that the applicant appreciated that because Ms Carroll was the key witness against him in the proceedings with respect to the primary offences, if he could either induce her to be unavailable, withdraw from the prosecution, provide a false statutory declaration, or provide false evidence at Court when called, he would be able to avoid conviction on those primary offences. His Honour went on to say: "He abused the privilege of being able to make telephone calls while in custody, and he abused that privilege by endeavouring to persuade the victim to assist him in one of a number of alternative ways from being convicted. He did so - clearly with the knowledge that his prison phone calls would be recorded - by pretending that the person he was speaking to was someone other than the victim. When she was non-responsive to his calls, he engaged the services of a friend to ensure that she would take his calls, although there is no evidence that the friend acted on the request."
4. His Honour described the effect of the calls. He found that the applicant's plan was not a particularly sophisticated one, although it did involve an element of deception in order to avoid detection by prison authorities. His Honour then said: "His conduct was persistent and continuing between 6 May and 27 May 2014. Apart from the calls which connected and were answered, he made a significant number of other calls attempting to speak to the victim, to which she did not respond, but which would have been evident to her from her mobile phone records. There is, in that sense, not only an effort at emotional blackmail but also in effect a form of harassment."
5. His Honour found that the applicant was clearly aware at all times that his conduct constituted a criminal offence, and that he undertook that conduct with the intention of procuring his acquittal on the primary offences. His Honour then found that the offence was in all of the circumstances "objectively serious" and that it was an offence which struck at the integrity of the system of justice. His Honour noted that a custodial sentence was normally considered appropriate for offences of this kind.
6. His Honour went on to consider the subjective circumstances of the applicant. He noted that the applicant did not give evidence or put any evidence before the Court except for the Pre-Sentence Report prepared for the purposes of the sentencing proceedings in the Local Court. His Honour found that that report had limited utility in the proceedings before him because it did not address the offending behaviour for which the applicant was being sentenced. Nevertheless, his Honour noted the subjective matters which were of general import.
7. His Honour noted that there was no evidence of remorse or contrition and that he did not regard the plea of guilty in all of the circumstances as being evidence of those matters, although he did make full allowance for its utilitarian value.
8. His Honour turned to consider the cases to which he had been referred in submissions. He noted that each of those cases referred to offences where the maximum penalty was 7 years imprisonment, and not the maximum penalty of 14 years imprisonment which applied by virtue of s 324 of the Crimes Act. There was one exception to this: Asplund v R [2014] NSWCCA 237.
9. His Honour noted that, apart from the legal principles stated in those cases, he was not assisted by the individual sentences imposed in those cases because they turned on the particular circumstances involved. He noted that it was not possible to discern a pattern of sentencing from three or four such cases. His Honour noted that he was referred to statistics produced by the Judicial Commission of NSW. He noted that because of limitations on those statistics, and the small number of offences on which those statistics were based, he did not derive any assistance from them.
10. His Honour then referred to the two primary offences, and the remarks of the sentencing Magistrate in the Local Court.
11. His Honour went on to consider the purposes of sentencing and the particular circumstances which he found relevant. He noted that the applicant had not spent any time in custody prior to the sentence imposed in the Local Court, and that whilst he had a not insignificant number of prior offences, they did not provide much indication of matters relevant to the sentence which he was imposing.
12. His Honour considered that both specific deterrence and general deterrence were important and significant matters for the Court to take into account. His Honour considered general deterrence to be a significant matter because offences such as the one with which he was dealing frequently went undetected because of the nature of the relationship between a victim and an offender.
13. His Honour then considered the question of concurrency. He accepted the submission that, in light of the principle of totality, any sentence which he imposed should have regard to the sentences imposed in the Local Court for the primary offences. He said: "In my view, it would be entirely inappropriate to make the sentence imposed in this matter entirely concurrent with those sentences, but noting the terms of the sentences that he is already serving and the sentence that I intend to impose in this matter, I'll provide for some concurrency particularly as this is the first significant period of custody that the offender has had imposed on him."
14. His Honour then went on to indicate that he would date the sentences which he imposed to commence one year after those imposed in the Local Court.
15. His Honour went on to find special circumstances, and then imposed the sentences. He made a recommendation that, when the applicant was released on parole, he be subject to supervision, counselling and treatment, particularly in respect of the use of prohibited drugs or prescribed medications. He also recommended that he receive treatment for anger management.
16. His Honour then imposed the sentence to which previous reference has been made.
17. It is convenient now to consider the two grounds of appeal.

Ground 1: Irrelevant Material Considered on Sentence

1. The applicant submitted that in determining an appropriate sentence, the sentencing Judge took into account a fact which was agreed, but which was irrelevant to the conduct which constituted the offence.
2. As identified above at [15], one of the agreed facts was that the applicant called the victim from jail more than 100 times. Many of these calls were not answered.
3. The conduct constituting the offence to which the applicant pleaded guilty was conduct which was intended to persuade the victim to give false evidence. The offending conduct was particularised as being confined to a series of telephone conversations which actually took place with the victim. The unanswered calls were not particularised as forming any part of the alleged criminal conduct.
4. The applicant submitted that having regard to the remarks of the sentencing Judge, his Honour erroneously treated the unanswered calls as forming part of the applicant's criminal conduct for which he was to be sentenced, and thereby overstated the objective seriousness of the offending. In particular, the applicant drew attention to his Honour's remark that the applicant's conduct was "persistent and continuing" and that the calls constituted "an effort at emotional blackmail … [and] also an effective form of harassment".
5. The Crown submitted that it was important to keep in mind that the Remarks on Sentence were delivered, in effect, ex tempore and that the Court has always been concerned to provide a degree of latitude to the sentencing Judge in these circumstances: Gal v R [2015] NSWCCA 242 at [38]; Cullen v R [2014] NSWCCA 162 at [35].
6. The Crown submitted that the remarks of the sentencing Judge, which referred to facts that were agreed, did nothing more than provide a context within which the offending conduct occurred and that the sentencing Judge had not erroneously taken that context into account in assessing the objective seriousness of the offence because he was simply summarising the agreed facts.
7. The paragraph recording the large number of conversations appears in a portion of the Remarks on Sentence in which his Honour summarised all of the agreed facts in a thorough and careful manner. His Honour then recorded the proceedings in the Local Court for the primary offences, and he proceeded to consider other factors relevant to the applicant's offending, including that the applicant was subject to three s 9 bonds at the time of the present offence.
8. His Honour returned to consider the calls, describing the applicant's conduct as "persistent and continuing". That was a fair description of the applicant's conduct, whether it included the unanswered calls or not. When considering the unanswered calls specifically, his Honour merely commented that they indicated both an effort at emotional blackmail and a form of harassment.
9. His Honour did not proceed at that stage to assess the objective seriousness of the applicant's offending. No complaint is made with respect to that. All that his Honour did was make an assessment that the offence was, in all the circumstances, an "objectively serious offence". His Honour justified that finding by reference to the applicable maximum sentence of 14 years imprisonment and the fact that such offences strike at the integrity of the system of justice.
10. The essence of the applicant's submission is that if one commences with the proposition that the sentence is an excessive one, and notes the sentencing Judge's comment with respect to the unanswered calls, one can reason to the conclusion that the sentencing Judge impermissibly took that matter into account in sentencing the applicant.
11. I am wholly unpersuaded by that submission. The unanswered calls were matters of context and appropriately remarked upon by his Honour. There is simply no material which would justify a conclusion that his Honour impermissibly took these matters into account in sentencing the applicant. I would not be prepared to uphold this ground.

Ground 2: Manifest Excess

1. The applicant submitted that the sentence imposed was manifestly excessive in all of the circumstances.
2. It is to be recalled that the sentencing Judge discounted the sentence by 25% in recognition of the utilitarian value of the applicant's guilty plea. Allowing for that discount, the starting point of the sentence was 6 years and 8 months, with a non-parole period of 4 years. The maximum sentence for the offence was 14 years. Accordingly, it can be seen that the sentencing Judge's starting point was just below one half of the maximum sentence.
3. The applicant's submissions accepted that to succeed on this ground he needed to demonstrate that the sentence was "unreasonable or plainly unjust": Hili v The Queen; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [58]-[67]. Importantly, the applicant's submissions accepted that there is no single correct sentence, and that it is not a matter for this Court to substitute its own opinion for that of the sentencing Judge merely because it may have exercised the sentencing discretion in a different manner to the sentencing Judge: R v Vuni [2006] NSWCCA 171 at [33].
4. The applicant principally seeks to argue that the sentence is manifestly excessive by reference to other decisions. The applicant accepted that, in those circumstances, the applicable principle is that identified by the High Court of Australia in Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 253 CLR 58 at [41]: "As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yard stick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect …"
5. The applicant argued, by reference to two particular decisions (Asplund and R v Burton [2008] NSWCCA 128), other Court of Criminal Appeal decisions involving sentences for offences against s 323 of the Crimes Act (unenhanced by s 324), recent Court of Criminal Appeal decisions involving sentences for public justice offences, and Judicial Commission statistics, that the sentence imposed was manifestly excessive. The applicant drew attention to the fact that the sentence he received was the most severe sentence among those identified in the comparable cases and the Judicial Commission statistics. The applicant argued that, while this fact alone did not render his sentence manifestly excessive, it provided a sound basis to argue that the sentence was unreasonable or plainly unjust.
6. The Crown submitted that the present offence was the last in a series of offences committed against the same victim. It was designed to defeat the course of justice and, had the applicant been successful in procuring an acquittal, he might also have been able to resume his relationship with the victim.
7. The Crown submitted that, particularly in the context of the previous domestic violence offences, both specific and general deterrence were of particular importance in the sentence imposed by King SC DCJ.
8. The Crown drew attention to the fact that, at the time of his offending, the applicant was the subject of three s 9 bonds and was in custody having been refused bail. The Crown submitted that the sentencing Judge correctly took into account the seriousness of the primary offences, and that having regard to the seriousness of those offences, the sentencing Judge was entitled to impose a stern penalty on the applicant with respect to this offence because of his attempts to avoid criminal responsibility for the primary offences.
9. The Crown submitted that the applicant had failed to establish that the sentence was unreasonable or plainly unjust.
10. It is convenient to examine two of the cases principally relied upon by the applicant. The first is Burton. This case involved a series of assaults (two offences of common assault; two offences of assault occasioning actual bodily harm) in a domestic context. The offender, whilst detained at a correctional centre, telephoned the victim of the domestic assaults on a number of occasions over a 10 day period. Those telephone calls were recorded. In each of those phone calls the offender attempted to persuade the victim, his domestic partner, to withdraw the allegations about the assaults, and to give evidence that her original complaints to the police were false. These facts are similar to those in this case. The underlying offences were less serious.
11. The sentencing Judge (Murrell SC DCJ) was persuaded that the offence was towards the lower end of the range of objective seriousness for offences against s 323(a) of the Crimes Act. In particular, her Honour found that the offence did not involve any threats of violence, and the offender was not in a position to carry out any threats of violence because he was in custody.
12. The offender had a strong subjective case. He gave evidence that the offending conduct had occurred whilst he was addicted to methylamphetamine (ice). As well, the victim of the offence gave evidence as part of the offender's case. The evidence confirmed that upon his release, she would resume cohabiting with him and that it was their intention to marry. She also accepted that his offending was drug related.
13. The Court of Criminal of Appeal upheld the Crown appeal against sentence. The sentence originally imposed of a 3 year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act, was quashed and in lieu thereof the Court of Criminal Appeal sentenced the offender to imprisonment for a non‑parole period of 2 years with a balance of term of 1 year.
14. The second case to which attention was drawn was Asplund. The primary offence with which the offender was charged related to the possession of child pornography. The offender was also under investigation at the relevant times for offences against s 474.27(1) of the Criminal Code 1995 (Cth), namely child grooming offences.
15. In February 2008, a search warrant was executed in support of the investigation of the child grooming offences. The offender's computer was seized. Upon forensic examination of the computer hard drive, the police located child pornography material. This led to the offender being charged with an offence of possessing child pornography. At the time of these events the offender lived with his 17 year old son. Soon after he was charged, the offender asked his son to help him by making a written statement in which he (the offender's son) took the blame for many of the facts which constituted the possession of child pornography offences and the child grooming offences.
16. Later, whilst awaiting trial, the offender asked his son to write a second statement. The contents of each statement were largely dictated by the offender.
17. The Court of Criminal Appeal declined to grant the offender an extension of time to appeal against his sentence of 4 years with a non‑parole period of 1 year and 6 months on the basis that the offender's grounds of appeal had no prospects of success.
18. It can be readily accepted that in this particular area of offending, the facts vary from case to case. The decision of Asplund involved offending which was reasonably serious. The offender asked his son to procure two false statements and asked him to procure two other witnesses to corroborate those statements. Nothing is known about what discount, if any, was allowed for what was an apparently late plea. The plea was entered in circumstances where the charge had been almost completely heard by a jury, including the giving of evidence by, and cross-examination of, the offender's son. The jury was discharged. At the time the second trial was due to commence, a plea of guilty was entered.
19. The offender's subjective case included the fact that he was suffering from a major depressive disorder as well as an adjustment disorder with depressed mood, he was genuinely remorseful, he had insight into the seriousness of his behaviour, he was of advanced age and he had been the subject of a successful appeal by the Crown in the Court of Criminal Appeal in respect of other offences. He had no relevant past criminal history.
20. The other matter to be observed about Asplund is that the grounds of appeal did not directly attack the sentence which was imposed for the offence of influencing a witness. Rather, they attacked the process of sentencing, and, based on the principle of totality, the aggregate effective sentence that was imposed with respect to both offences. There was no finding in the Court of Criminal Appeal that the sentence for the s 323(a) and s 324 offences was unduly lenient or unduly stern. The Court of Criminal Appeal did note that the offence of influencing a witness was one which "… struck at the very heart of the criminal justice system". It also noted that there was an added dimension to the seriousness of that offence because of the effect it had on the offender's son. The Court of Criminal Appeal was not called upon to consider whether the sentence was either manifestly excessive, or manifestly inadequate.
21. It can be accepted that the decision in Burton involved facts that were reasonably similar to those involved in this application for leave to appeal. Both Burton and the present case involve offenders in custody telephoning the victim of their domestic violence offence in an attempt to discourage them from giving evidence. However, the circumstances of the offence in Burton did not attract the operation of s 324 of the Crimes Act. Consequently, the applicable maximum penalty in Burton was half of the applicable maximum penalty in this case.
22. The subjective case for Mr Burton demonstrated a disturbed family upbringing, behavioural problems from the time he attended school, and a significant history of drug use which was relevant at the time of the offences. As well, there was expert evidence that the offender had a depressive illness and a propensity towards violence and anger which required treatment from an expert. The victim of the offences gave evidence for Mr Burton as part of his subjective case, and indicated that, subject to him overcoming his drug dependency, she and her children looked forward to resuming their lives together with Mr Burton. This powerful subjective case was not present in the sentence proceedings under consideration here.
23. It is difficult to draw links between the circumstances of Burton and the present case. There are significant differences. The charges in the case of Burton were different and the subjective circumstances of the offender were different.
24. The decision in Asplund is significantly different from the facts here. The Court was not called upon to express a view about the appropriateness of the sentence. Rather, it simply determined whether any error was demonstrated of the kind alleged. Although the offence is the same as that relied upon here, the circumstances are so different that they do not provide any guidance to assist in resolving whether the sentence imposed here was manifestly excessive or not.
25. In this case, one feature which does have prominence is that, after pleading guilty to the primary offences, the applicant was sentenced to a non-parole period of 18 months and a total period of 2 years. In contrast, after pleading guilty to the subject offence the applicant was sentenced to a non-parole period of 3 years and a total period of 5 years.
26. Although the primary offences and the offence the subject of this appeal are distinct offences, and the sentences for them ought not to be strictly compared, it does seem surprising that the applicant would be required to serve a non-parole period for the subject offence which is double the length of the non-parole period imposed for the primary offences.
27. The starting point for the sentence for the subject offence is just under half of the maximum penalty available. In circumstances where the telephone calls which were made were not accompanied by any threats of violence, whether made directly over the phone or else by a third party to the victim, and where, although little was known about the applicant subjectively, he had not previously committed an offence of this kind, there is no obvious reason why the appropriate starting point was as high as it was.
28. In all of the circumstances, I am persuaded that the sentence imposed for the subject offence was manifestly excessive. It is difficult to point to any specific error in the Remarks on Sentence. However, I am left in the end with a strong sense that the sentence well exceeded what was reasonable in the circumstances.
29. Accordingly, I am persuaded that this ground succeeds and the sentence ought be quashed.

Re-sentence

1. No complaint is made with respect to special circumstances or the proportion between the non-parole period and the balance of term fixed by the sentencing Judge. No complaint is made with respect to the commencement date, and the degree of accumulation upon the earlier sentences for the two primary offences.
2. The Court should proceed to re-sentence the applicant in accordance with these parameters.
3. In the event that the applicant was to be re-sentenced, an affidavit sworn by him and dated 31 August 2016 was read. That affidavit established that the applicant has taken steps towards providing himself with educational qualifications and work skills. He is participating in the methadone program and is on anti-depressant medication.
4. He has said that his days are "now filled with work, exercise and study". He attributes a significant improvement in his mental health and his health generally to these activities. He has maintained his relationship with his parents. He has made enquiries about entry into various rehabilitation programs whilst in custody but will not become eligible for those until closer in time to his release on parole.
5. As well, an affidavit affirmed on 30 August 2016 by the applicant's solicitor, Ms Hill, was read. A series of notes made by the Department of Corrective Services with respect to the applicant's behaviour whilst in custody were attached to Ms Hill's affidavit.
6. The affidavit corroborates the applicant's evidence and proves that the applicant has diligently undertaken his studies and work tasks. In general, his attitude to work and study is commended. Some hope is expressed that the applicant will be able to proceed to tertiary studies.
7. There is no suggestion that the applicant's behaviour whilst in custody has been anything other than appropriate. This additional material does provide further support for a conclusion that the applicant has shown encouraging prospects of rehabilitation with the consequence that his prospect of reoffending has lessened.
8. Nevertheless, an offence against ss 323 and 324 of the Crimes Act is a serious one. The integrity of justice is placed at risk if individuals arrogate to themselves the role of determining what evidence will or will not be given in Court, and whether that evidence will or will not be truthful in circumstances where the individual is seeking to promote their own self-interest.
9. Having regard to the objective seriousness of the offence and the applicant's subjective case, and taking into account that the applicant received a 25% discount for his early plea of guilty, I would impose a sentence of imprisonment for a non-parole period of 2 years and a balance of term of 18 months.
10. I would fix the sentence to commence on 13 April 2015.
11. I propose the following orders: 1. Leave to appeal granted. 2. Sentence imposed in the District Court on 20 March 2015 is quashed. 3. In lieu thereof, the applicant is sentenced to imprisonment for a non‑parole period of 2 years commencing on 13 April 2015, and expiring on 12 April 2017, with a balance of term of 1 year and 6 months expiring on 12 October 2018.
12. HIDDEN AJ: I agree with Garling J.

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