R v Evans [1996] QCA 553

Court of Appeal (Qld)|1996-07-09|Before: Williams J, Ambrose J, Byrne J

AMBROSE J: This is an appeal by the Attorney against a sentence imposed upon the respondent when he pleaded guilty to perjury on 29 March 1996. It is the contention of the appellant that the ultimate penalty imposed was inadequate, that the sentencing Judge, at least by implication, had regard to the effect of another sentence or that the effect of the sentence imposed in respect of another offence as being relevant to the appropriate punishment upon the perjury charge.

The case is a little unusual and I will deal briefly with the history of events leading to the commission of the offence. The respondent in September 1993 was charged with offences of possession of a dangerous drug and supplying a dangerous drug. He provided police officers investigating these offences a statement asserting that he had been given those drugs by another man who had paid him to deliver them to a purchaser. On 8 April 1994 he appeared in the Supreme Court and pleaded guilty to both charges and he was sentenced on the basis of the statement that he had given to the investigating police officers.

In the course of submissions made on his behalf, it was stated that he proposed to give evidence for the prosecution against the man he had named as the person who had supplied him with the drugs. Acting no doubt upon this material which was not contested by the Crown, the respondent was sentenced to two years' imprisonment and this was wholly suspended for a period of three years.

Shortly afterwards, in fact on 17 April 1994, less than a fortnight after he had been sentenced, he was called as a witness at the committal proceedings and asserted there that his statement given to the police officers in September 1993 was untrue. In fact, he then gave evidence to the effect that the man he had named had not supplied him with heroin and he gave evidence generally exculpating the man on whose committal proceedings he had been called to give evidence. The Stipendiary Magistrate then dismissed the charges against that man.

The Attorney then appealed against the sentence that had been imposed upon the respondent on 8 April 1994 and that appeal was heard on the basis that the sentence then imposed had been imposed on an incorrect factual basis and the matter was remitted to the sentencing Judge for re-sentence. He was re-sentenced on 20 March 1995 and on that occasion was sentenced to imprisonment for three years. No recommendation was made with respect to parole.

The respondent applied for leave to appeal against the sentence, the sentence was affirmed and it was observed by the Court in the course of judgments from the Court of Appeal that the sentence was at the lower end of the range of sentence appropriate for the quantity of heroin involved in the offence. The respondent appeared then in the District Court on 29 March 1996 on a charge of perjury resulting from the evidence that he gave in April 1994.

He pleaded guilty to that charge and in the course of submissions being made, it was advanced on his behalf that at least one of the matters motivating the perjury was some fear that he held, of violence from the man he had named as being his supplier, should he give evidence against him. This was not a matter of fact which was acceded to by the prosecution. The respondent did not give evidence to this effect and the learned sentencing Judge did not positively find that he had been motivated by fear rather than by simply a desire to assist the other man and the evidence demonstrated that he had some friendly association with that other man.

The sentencing Judge, in the course of his sentencing remarks, observed that by the time the respondent had been sentenced to imprisonment for three years on his second appearance in respect of the drug offences in this Court, he had effectively conceded his perjury to which he pleaded guilty. In fact, this was conceded in the course of material placed before the Court of Appeal on his appeal from that sentence. It was pointed out that there had been some delay in proceeding with the perjury charge and that in fact about 18 months had elapsed between the commission of the perjury and in fact he had not been charged until October 1995.

His Honour, in the course of imposing sentence, made these remarks which the Attorney says, or contends, demonstrated that he failed to apply the proper principle in determining the level of punishment appropriate. He said, "Perhaps in a moral sense it was the perjury you now admit which changed your situation from that of a person facing a suspended sentence if you had broken the law again coming into effect. You moved to the situation of a person serving a three year head sentence without any recommendation for early parole."

The learned sentencing Judge then imposed a penalty of imprisonment of two years and three months. However, he determined that in the circumstance that penalty ought not be cumulative, it ought be concurrent; and the consequence of imposing a concurrent sentence for this period was that, if fully served, it would expire three months after the expiration of the three year penalty imposed with respect to the drug offences.

He then recommended, pursuant to section 1573(b) of the Penalties and Sentences Act, a non-parole period for the respondent to expire on 20 December 1996. The effect of that was that he became eligible for parole after sentencing on the perjury count three months later than he would in any event have become eligible for release upon parole upon the sentence imposed for the drug offences.

The principle upon which an Attorney's appeal is considered was stated in Re Melano against ex parte Attorney-General, reported in 1995, Volume 2 of the Queensland Reports at 186. I refer to the observations at pages 189 and 190 of that report. This Court will not interfere with a sentence upon an appeal by the Attorney unless it is satisfied that the sentencing Judge has erred in principle, either because an error is discernible or demonstrated by manifest inadequacy or excessiveness or unless for some reason the Court is persuaded that the sentence is outside the sound exercise of the sentencing Judge's discretion.

In my view, perjury is a serious offence. The respondent quite deliberately gave false evidence on oath, the object, presumably, being to achieve the non-committal of his friend on a criminal offence. He has conceded that he gave that false evidence. In my view, the result of the sentence imposed by the learned sentencing Judge was manifestly inadequate and I am persuaded that his sentencing discretion did miscarry.

His Honour's observations concerning the effect of the perjury on having him resentenced for the drug offences to which he pleaded guilty, in my view, also suggest a departure from principle. It is clear on the material that the sentence imposed with respect to the drug offences was at the lower end of the range of appropriate sentence for those offences, and the perjury that was committed by the respondent, as he conceded by pleading guilty to it, had no relevance and it was not considered in the imposition of the sentences for the drug offences.

Nothing is said by the Crown as to the adequacy of the concurrent sentence of two years and three months imposed. In my view, however, the offences are such that the sentences ought to have been cumulative. That is, the sentence for perjury ought to have been a cumulative sentence, ought to have been made cumulative with the sentences imposed for the drug offences.

On the cases, there's no real dispute, I think, that the appropriate range, forgetting questions of totality, for a sentence for this perjury would have been within the range of from two years to two and a half years.

I would set aside the sentence imposed by the learned sentencing Judge on the basis that it was manifestly inadequate and imposed disregarding a proper principle of the exercise of a sentencing discretion, and in lieu I would impose a sentence of two years. I would order that that sentence be cumulative with the sentence imposed on 20 March 1995 of three years for the drug offences.

However, having regard to principles of totality, I would recommend that the respondent be eligible for parole with respect to the sentence imposed for the drug offences and with respect to this sentence for perjury, that he would be eligible for parole nine months after he would in any event have become eligible for parole on the sentence of three years imposed for the drug offences. He would have become eligible or he will be eligible with respect to that three year sentence on 20 September 1996.

I would therefore recommend that he be eligible for parole with respect to the initial sentence for the drug offences and this cumulative sentence for perjury, nine months later; that is, on 20 June 1997.

WILLIAMS J: I agree. I would merely add that the proposed sentence does not, in my view, offend the totality principle.

WILLIAMS J: The order of the Court will be appeal allowed, set aside the sentence imposed below and, in lieu, sentence the respondent to imprisonment for a period of two years to be served cumulatively with the sentence imposed 20 March 1995. Further order that the respondent be eligible for parole on

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