R v Hunter; ex parte A-G

Director of Public Prosecutions (Queensland) for appellant

[1] THE COURT: On 9 November last year the respondent was convicted, after a trial in the District Court, on four counts of perjury; on 31 May 1996, between 2 June 1996 and 5 June 1996, on 6 June 1996 and on 13 June 1996. All consisted of lying on oath during the course of a civil trial in which she was the principal witness for a company, Naomi Marble and Granite Pty Ltd, in an action against an insurance company, FAI General Insurance Limited, for $1.3M upon a claim under a policy of insurance. She was the managing director of that company. The civil trial lasted for about six months and the respondent's evidence alone occupied about 20 days, during 17 of which she was cross-examined.

[2] Also on 9 November the respondent was sentenced to two years imprisonment on each count with a recommendation that she be eligible for release on parole after serving five months of that term. The Attorney-General appeals against that sentence on the ground of its manifest inadequacy for three reasons; that it fails to reflect adequately the gravity of the offence generally and in this case in particular; that it fails to take sufficiently into account the aspect of general deterrence; and that the sentencing judge gave too much weight to factors going to mitigation.

[3] The respondent is now 35 years of age. She was 31 when she committed the offences. She has no prior criminal history.

[4] Perjury carries a maximum penalty of 14 years imprisonment. It is rightly viewed by the legislature as a very serious offence, striking as it does at the heart of the administration of justice. It is also an offence which is difficult to detect and prove. For these reasons, general deterrence is an important factor in sentencing for it.

[5] Naomi Marble and Granite was incorporated on and commenced business on or shortly after 17 May 1993 in rented premises at Virginia. Up until 16 May 1993 a group of companies called the Elegant Group conducted a business at Waterfront Place, Brisbane of a kind similar to that later conducted by Naomi Marble and Granite. The Elegant Group of Companies had been run by a man called Edward Morales, the respondent's brother. By 16 March it was the defendant in one legal action and others had been foreshadowed against it. It had apparently by then ceased business.

[6] In this context it was the contention of FAI in the civil action that Naomi Marble and Granite, from 17 May 1993, carried on the business formerly carried on by the Elegant Group, that Morales was running that company and that the assets of the Elegant Group had been stripped and transferred to Naomi Marble and Granite. The failure to disclose these facts was one of the bases for rejecting the claim which arose out of an alleged break-in of the Virginia premises of Naomi Marble and Granite on the weekend of 21 - 22 November 1993.

1. that she did not sign an application by the Elegant Group on 12 May 1993 for the issue of a bank cheque for $40,000 payable to Anne Hunter. That cheque reduced the credit in the bank account of the principal company in that Group to a few thousand dollars and it was paid into her account.

2. That she had no knowledge of the removal of furniture and equipment from the office premises of the Elegant Group in Waterfront Place on the weekend of 15 and 16 May 1993. The furniture turned up at the premises of Naomi Marble and Granite at about that time.

3. That she did not fax a document, on behalf of the Elegant Group of Companies, to the National Bank on 20 April 1993. This was relevant to whether she was still working for the Elegant Group at that time.

4. That she did not have knowledge that Thynne & Macartney were the solicitors for Mr Morales at about 8 July 1993. This involved a payment made by Naomi Marble and Granite to Thynne & Macartney, of which it was alleged the ultimate recipient was Morales.

[8] The learned sentencing judge found that the respondent's motive for her perjured testimony was monetary gain. That was not disputed by the respondent before this Court. However a submission was made on her behalf before the sentencing judge that, because the motivation of the respondent in lying was to conceal the involvement of Morales in the running of Naomi Marble and Granite it would follow logically that the perjury was a misguided attempt to assist him. Notwithstanding his Honour's finding and the acceptance of it by the respondent before this Court that submission was again made here. But there was no evidence to support that submission and, in view of his Honour's finding, it must therefore be rejected.

[9] The learned sentencing judge said that extracts from the respondent's evidence in the civil trial disclosed a witness who was astute and inventive and alert to the need to give false evidence so as to achieve success in the civil claim. That is undoubtedly correct. It may be added that her persistence in lying continued over a sustained period between 31 May and 13 June. These were therefore serious acts of perjury, over a sustained period, involving a very large sum of money.

[10] There was very little which could be said on the respondent's behalf by way of mitigation. She showed no remorse, persisting in her denial throughout her criminal trial. It should be said however that a number of admissions were made on her behalf in the criminal trial which shortened its length. It was also said on her behalf that she and her husband suffered financial ruin as a result of the civil litigation and that she had suffered a major depressive episode and general anxiety since 1994. Whilst the learned sentencing judge expressed some degree of scepticism as to her condition in 1996, at the time of the criminal trial, he did accept that she had this condition at the time of sentence and that this would result in a term of imprisonment bearing rather more heavily on her than upon a person of more robust health.

[11] On the Attorney's behalf it was submitted that, when regard is had to comparable authorities, the sentence as a whole was manifestly inadequate. The cases relied on by the Attorney were Johnson CA No 360 of 1989, Wood CA No 271 of 1991, Back CA No 289 of 1992, Ozdemir CA No 361 of 1993 and Evans CA No 148 of 1996. The respondent did not rely on any other authorities. It is unnecessary to go to the facts of those cases which were canvassed at some length before this Court. It is sufficient to say that the facts in none of them are closely comparable to those in this case but that they do support the Attorney's contention that the sentence here was manifestly inadequate. The seriousness of the totality of these offences and the difficulty in detecting and proving offences of this kind required, in our view, a sentence of three years imprisonment. The mitigating factors referred to required some but not great amelioration of this sentence by a recommendation for early parole. We would accordingly allow the appeal, set aside the sentences imposed below and, on each offence impose a sentence of three years imprisonment. We would add a recommendation that the respondent be eligible for parole after serving one year of that term.