GREALISH, Peter v R

[2013] NSWCCA 336

Court of Criminal Appeal (NSW)|2013-12-06|Before: Leeming JA, Adams J, Hall J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2013-12-06

Before

Leeming JA, Adams J, Hall J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

R v Irwan [1999] NSWCCA 361 R v Einfeld [2009] NSWSC 119 Einfeld v R [2010] NSWCCA 87 R v Bulliman (NSWCCA, 25 February 1993, unreported) R v Aristomenou (NSWCCA, 30 June 1994, unreported) Category: Principal judgment Parties: Peter Grealish (Applicant) Regina (Crown) Representation: Counsel: D Stewart; (Applicant) J Girdham SC (Crown) Solicitors: Shiranica Danieli Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/209082 Decision under appeal Date of Decision: 2013-04-26 00:00:00 Before: Solomon DCJ File Number(s): 2010/209082

[2]

Judgment 1LEEMING JA: I agree with Hall J. 2ADAMS J: I agree with Hall J. 3HALL J: The applicant seeks leave to appeal in respect of sentences imposed upon him in the District Court on 26 April 2013. 4In Amended Grounds of Appeal filed on 30 October 2013, the applicant gave notice that he relied upon the following grounds of appeal: 1. His Honour failed to properly consider whether or not in the circumstances of this case, a sentence of imprisonment other than full-time custody would be appropriate. 2. His Honour was in error in finding in relation to the s 178BB(1) offences that the objective criminality of the offences were more serious or aggravated by the fact that the appellant was an officer of the Supreme Court, and that he used administrative knowledge and experience to commit the offences. 3. The aggregate sentence was manifestly excessive, as the sentence indication with respect to the s 178BB(1) offences was excessive, thereby infecting the aggregate sentence with error. 4. The aggregate sentence was excessive as the indicated sentence in relation to the s 107 offence failed to reflect the significant objective and subjective distinctions between the appellant and the offender Behman, thereby infecting the aggregate sentence with error.

[5]

Factual Matters 13Between October 2006 and November 2007, four traffic offences were committed in two motor vehicles registered to the applicant. Infringement notices were received by him. In relation to each notice he completed and sent a signed statutory declaration to the Infringement Processing Bureau nominating another person as being responsible for his motor vehicle when the traffic offences occurred. 14On 23 June 2010, the applicant was originally served with Court Attendance Notices in relation to six charges of obtaining financial advantage by a false statement pursuant to s 178BB(1). He pleaded not guilty to all six charges. On 20 May 2011 he was committed for trial to the Sydney District Court. 15On 16 September 2011, the Crown filed an indictment containing the six committal charges and one additional ex-officio count of giving false evidence at a hearing before the Police Integrity Commission ("the Commission") pursuant to s 107 of the PIC Act. 16The applicant entered not guilty pleas in relation to the six counts on the indictment under s 178BB(1). Prior to the trial the Crown severed the count relating to giving false evidence before the Commission. 17On 4 October 2012 the applicant was arraigned before a jury. He pleaded not guilty to all counts. On 8 October 2012, there was a verdict by direction in relation to Count 2 on the indictment. 18On 11 October 2012, the jury acquitted the offender of Count 1 and found him guilty of the remaining four counts. 19The four offences charged under s 178BB(1), and in respect of which the applicant was convicted, occurred between 6 December 2006 and 20 November 2007. 20In relation to the offence of giving false evidence, the applicant had, on 5 September 2008, appeared before the Commission at a private hearing. The general scope and purpose of the hearing was "... to investigate whether Peter Hanna, Tarek Behman, or any other person associated with them has been involved in criminal activity or police misconduct". The applicant was asked a series of questions. The answers to those questions concerned the traffic offences that occurred on 25 October 2006, 14 November 2006, 27 June 2007 and 26 October 2007. The four statutory declarations made by the applicant in respect of the traffic offences falsely nominated a person, Kahlid Ak-Baras Mahmoud of Egypt as being the person responsible for each traffic offence. 21At the trial it was pointed out to the applicant during his evidence that inquiries had established that there was no person by that name who was present in Australia at the time of the traffic offences. It was put to him that his statutory declarations were false in that he had nominated a person as being in possession of the vehicle who was not in Australia at the time. The applicant denied that that was correct. 22The applicant accepted at the sentence hearing that his evidence before the Commission concerning the truthfulness of the four statutory declarations was false and at the time he knew it was false and that it material to the proceedings. 23The sentencing judge stated that he would not increase any sentence by reason of the fact that the applicant gave false evidence during his trial. 24As an issue of parity was raised at the sentence hearing, it is necessary to briefly refer to that aspect. The person, Tarek Behman, was sentenced in the District Court (Sorby DCJ) on 15 February 2013 in relation to eight counts of making false statements to obtain financial advantage contrary to s 178BB(1). The offences were committed by Behman in similar circumstances to the four offences committed by the applicant, in that the names of Egyptian national persons were nominated as drivers of the motor vehicles for the purposes of avoiding fines. 25Sorby DCJ considered that the appropriate sentences for the s 178BB offences to be a period of 16 months' imprisonment each. 26Behman pleaded guilty to one count of giving false evidence to the Commission contrary to s 107(1) of the PIC Act. He gave similar evidence to that of the applicant regarding the false nomination of persons as the driver of his motor vehicle. Sorby DCJ sentenced Behman to a period of 18 months' imprisonment in respect of the s 107(1) offence. His Honour sentenced Behman to an aggregate sentence of 3 years with a non-parole period of 2 years. 27Sorby DCJ, in sentencing Behman, had regard to the fact that Behman was a serving police officer at the time of the commission of each of the offences and the took advantage of his actual knowledge of the system so as to avoid paying fines with regard to the s 178BB(1) offences. In relation to the applicant, the sentencing judge expressly stated that this aspect did not apply to him in relation to the s 178BB(1) offences which he committed: Remarks on Sentence at p 11. 28A sentence hearing was fixed for 8 February 2013. 29The outstanding false evidence charge was listed for mention on 7 December 2012. 30On 7 December 2012, the application pleaded guilty to one count of giving false evidence before the Commission. The matter was stood over for sentence with the matters under s 178BB(1) and a new sentence date was fixed for 22 March 2013. 31The sentencing judge noted that the applicant had not expressed any remorse in respect of the s 178BB(1) defences. However, in relation to the s 107(1) offence he had pleaded guilty and his plea, his Honour concluded, contained within it a degree of contrition. Further, the applicant gave evidence that he accepted responsibility that what he did was wrong. 32The sentencing judge allowed a discount of 10% in respect of the s 178BB(1) offences in relation to assistance. In relation to the applicant's plea of guilty to the s 107(1) offence he discounted the sentence by 20% (10% for the utilitarian value of the plea and 10% for assistance). 33In relation to the objective seriousness of the offences on the indictment, the sentencing judge stated: "I now turn to the analysis of the criminality involved in the offences. Insofar as the s 178BB(1) offences are concerned, the offences occurred between 6 December 2006 and 20 November 2007. I regard the offences as forming part of a continuous course of conduct of the offender. I find there was little planning involved in the offences. I regard the offences to be at the low end of objective seriousness for the offences. The offences, however, were committed by an intelligent man for his own benefit who described himself to the jury during the course of the trial as an officer of the Supreme Court and the Federal Court ..." (This latter reference is to the applicant's evidence at trial that as a liquidator he was an officer of the Supreme Court of NSW and the Federal Court).

[6]

The Section 107 Offence 34The applicant's case on the s 107 offence was put upon the basis that he gave false evidence before the Commission on 5 September 2008 because he feared for his own safety and the safety of his children from Tarek Behman, as noted above, a serving police officer who was being investigated by the Commission. The sentencing judge did not accept, for the purposes of the sentencing exercise, that the applicant acted out of fear as he claimed. 35In relation to the objective seriousness of the s 107(1) offence, the sentencing judge observed: "... Prior to giving evidence, Commissioner Pritchard informed the offender he could be prosecuted should he give false or misleading evidence at the hearing. The offender, despite the warning, gave false evidence at the hearing. I reject the offender's explanation that he gave evidence as a consequence of his fear of Tarek Behman. I reject the offender's evidence as I do not regard him as a witness of truth." Remarks on Sentence at p 9 36The sentencing judge concluded: "... In relation to the s 107(1) offence I find that there was a greater obligation on the offender than on Behman not to give false evidence, having regard to the offender being an officer of the Supreme Court and the Federal Court. In the case of the offender I found [that he] at the time of the commission of the offences was suffering from psychological conditions which reduced his moral culpability, whereas his Honour Judge Sorby did not make a similar finding regarding Behman's psychological state." Remarks on Sentence at p 11 37I will return to the sentencing judge's above finding as to "a greater obligation", below. 38The sentencing judge made the finding of special circumstances to which I have earlier referred in relation to the applicant by reason of the fact that this was the first time he was to undertake a full-time custodial sentence and that he required ongoing rehabilitation in the community. 39The s 107 offence was clearly an objectively serious one. This is especially so given the sentencing judge's rejection of the applicant's account of having given false evidence as a consequence of fear held by him of Behman. 40The offence involved an intentional act of misleading the Commission by giving false and misleading evidence at the hearing being conducted by it. As noted above, he had previously been warned by the Commission of the consequences of doing so having sought and obtained a declaration under s 41 of the PIC Act. Having regard to the facts and circumstances of the offending conduct it was not only likely but, in my view inevitable, that the sentencing judge had to impose a full-time custodial sentence of imprisonment. Such a sentence was the only available sentencing outcome in respect of the applicant's perjury offence being at the higher end of the range of objective seriousness for such an offence, and one that was necessary to give effect to the principle of general deterrence.

[7]

Ground 1 - His Honour failed to properly consider whether or not in the circumstances of this case, a sentence of imprisonment other than full-time custody would be appropriate 41The transcripts record that there was, during the sentencing hearing, discussion of a possible sentencing option in the form of an Intensive Community Order ("ICO") in the event that an aggregate sentence of imprisonment no greater than two years was imposed. 42It was submitted on behalf of the applicant that this was a case in which there were alternative sentencing options. Reference was made to the provisions of s 5(1) of the Sentencing Act which specifies that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 43Whilst Mr Stewart of counsel who appeared on behalf of the applicant in this Court, submitted that there were possible alternatives, namely, a bond or a financial penalty, those were not raised as sentencing options at the sentencing hearing. Rather, as indicated above, the submission on behalf of the applicant to the sentencing judge was focused upon the possibility of an ICO rather than a full-time custodial sentence. 44There is, in my opinion, no basis for the submission that the sentencing judge proceeded contrary to the requirements of s 5(1) of the Sentencing Act. The real question was whether or not, before imposing a full-time custodial sentence, his Honour was required to consider alternative sentencing options and, in particular, whether an ICO was appropriate in the circumstances of the case. 45As the Crown correctly submitted, in choosing an alternative to full-time custody, a sentencing court cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment. 46As the Crown also submitted, general deterrence was significant to the sentencing exercise involved in the present case, especially so in relation to the s 107 offence for which there are well-settled principles: R v Irwan [1999] NSWCCA 361 at [50]; R v Aristomenou (NSWCCA, 30 June 1994, unreported); R v Bulliman (NSWCCA, 25 February 1993, unreported). 47Although the sentencing judge did not make any reference to, or provide reasons for not imposing an ICO I do not consider that fact of itself establishes error. 48Whether or not there was an alternative sentence for each or all of the s 178BB(1) offences (a matter considered below), would not have altered the fact that in sentencing the applicant at the one time for all offences (including in particular the s 107(1) offence) an ICO was never an option. The criminality involved in the s 107 offence effectively ensured that outcome.

[8]

Sentencing in Respect of the Section 178BB(1) Offences 49In circumstances in which it was clear that a sentence of imprisonment was the only sentencing option open in relation to the s 107 offence, the sentencing judge was required to consider whether a sentence or sentences of imprisonment was/were appropriate in respect of the s 178BB(1) offences or whether there was a more appropriate alternative sentencing option. 50His Honour was required to consider all the relevant objective and subjective factors in relation to the s 107 and s 178BB(1) offences. In relation to his mental/psychological condition, his Honour accepted the medical evidence of Dr Borenstein to the effect that the applicant was, at the time of the commission of the offence, suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. This, his Honour stated, reduced, to some degree, the general deterrent effect of the sentence. 51There were subjective factors that operated in the applicant's favour. These included the fact that the applicant had no prior criminal history, he was found to have had good prospects of rehabilitation and the fact, as the sentencing judge observed, that he had taken steps towards rehabilitation within the community with an accredited expert. 52Counsel who appeared for the applicant at the sentencing hearing submitted in respect of the overall sentences, not that a custodial sentence was not appropriate, but rather that the sentencing judge might consider it appropriate that the applicant be assessed for an ICO as the appropriate means of serving any sentence imposed. 53As discussed above, given that the applicant was being sentenced for the s 107 offence as well as the other offences, there was no requirement for the sentencing judge to have expressly addressed the issue of an ICO or other sentencing alternatives to a full-time custodial sentence. 54I do not consider there is any substance to Ground 1. That ground accordingly should be dismissed.

[10]

Ground 3 - The aggregate sentence was manifestly excessive, as the sentence indication with respect to the s 178BB(1) offences was excessive, thereby infecting the aggregate sentence with error 55I consider that Grounds 2 and 3 should be considered together. 56A number of matters in particular arise in respect of the s 178BB(1) offences. 57I observe at this point, that the nature of the offences the subject of R v Einfeld [2009] NSWSC 119; and Einfeld v R [2010] NSWCCA 87 were different from the offences here in question. In Einfeld, the prosecution related to two offences; the first a charge of perjury under s 327 of the Crimes Act, and the second a charge of perverting the course of justice under s 319 of the Crimes Act. An offence under s 178BB(1) is a considerably less serious offence for which the prescribed maximum penalty is a period of 5 years imprisonment. 58Insofar as the sentencing judge determined an indicative sentence for "each" offence under s 178BB(1) of a period of 9 months imprisonment, I do not consider that the objective seriousness of the first of those offences could justify or require a full-time custodial sentence to be imposed in respect of it in the particular circumstances of this case. 59The first of the s 178BB(1) offences committed in December 2006 as with the other three offences under that section involved the making of a false statement to obtain a financial benefit. Having regard however to the favourable subjective findings, I do not consider that the first of the s 178BB(1) offences alone called for a custodial sentence. It was a first offence and involved little by way of financial benefit. The offence could not alone, in my opinion, attract a sentence by way of a term of imprisonment of 9 months in accordance with the sentence indicated by the sentencing judge. 60The subsequent commission of the second, third and fourth s 178BB(1) offences, however, did, as his Honour observed, reflect an attitude of disregard for the law by the applicant. That introduced an objectively higher level of culpability than the first s 178BB(1) offence alone. 61It is to be noted that his Honour went on to state in his remarks on sentence that he found that there was little planning involved in the offences and he regarded them as offences "... at the low end of objective seriousness for the offences ...": Remarks on Sentence p 9. 62Criticism was directed to two particular comments made by the sentencing judge in respect of these latter offences. Firstly, his Honour observed that they were committed by "... an intelligent man for his own benefit who described himself to the jury during the course of the trial as an officer of the Supreme Court and the Federal Court ...": Remarks on Sentence at p 9. 63Secondly, his Honour went on to state: "The offender took advantage of his knowledge of the administrative system generally in order to commit the offences". 64Although I consider that there is some validity in the submissions that his Honour was wrong to take into account these latter two matters, I do not, at the end of the day, however consider that they had any material influence or effect as to the length of the indicative sentences for the s 178BB(1) offences in circumstances in which his Honour categorised all four offences as being at the low end of objective seriousness. His Honour proceeded upon that basis. 65I have concluded that the sentencing judge's determination of indicative sentences of 9 months each for the four offences charged under s 178BB(1) displays error, in that the objective seriousness of the first of the four offences alone could not justify a term of imprisonment of that duration. I consider that in the particular circumstances of this case, including the relevant subjective factors and findings made by the sentencing judge, the indicative sentences of 9 months' imprisonment for the first and each of the remaining three s 178BB(1) offences to be manifestly excessive. Accordingly, I consider that the indicative sentences for the four s 178BB(1) offences were manifestly excessive. Ground 3 should be upheld.

[11]

Ground 4 - The aggregate sentence was excessive as the indicated sentence in relation to the s 107 offence failed to reflect the significant objective and subjective distinctions between the applicant and the offender Behman, thereby infecting the aggregate sentence with error 66I have referred above to the objective seriousness of the s 107 offence. Conduct by a person involving the giving of evidence to an investigatory body such as the PIC which, to the knowledge of that person is false or misleading in a material particular, is one that attracts a maximum penalty of 5 years imprisonment. 67Ground 4 asserts that there were significant objective and subjective distinctions between the applicant and Behman leading to error. 68I accept that the sentencing judge was in error in finding that there was a greater obligation on the applicant than on Behman not to give false sworn evidence having regard to the applicant being an officer of the Supreme and Federal Courts. 69The applicant, of course, was not a judicial officer of either Court. He put himself forward, it is to be noted, as being an officer of the above Courts on the basis that, when acting as a liquidator he acted as an officer of either Court. 70That could not, in my opinion, form the basis for a finding of a "greater obligation" on the applicant than Behman. Behman was at the time a serving police officer in a position of trust. The sentencing judge's observation of the respective obligations of the applicant and Behman was erroneous for their respective obligations, in my assessment, were not susceptible to any meaningful distinction or ranking. They were both in serious breach of s 107. 71Although error as discussed has been established in relation to Ground 3 and in terms of the finding of a greater obligation in the applicant, in my assessment, no lesser sentence than that imposed in respect of the s 107 offence was warranted. 72Ground 4, in my opinion, should be dismissed. 73I have concluded: (1) An indicative sentence of 9 months' imprisonment for each of the s 178BB(1) offences was manifestly excessive. (2) Although error has been established in respect of the indicative sentences for the s 178BB(1) offences and the sentencing judge's finding as discussed above, no lesser sentence for the s 107 offence is warranted than that imposed, namely, a sentence of imprisonment of 18 months.