R v King

Judgment Introduction 1McClellan CJ at CL : I agree with Adams J. 2Adams J : On 21 June 2011 the respondent was sentenced following his pleas of guilty for an offence of perjury (maximum penalty 10 years imprisonment) to a fixed term of 12 months commencing 24 March 2010 and for an offence of perverting the course of justice (maximum penalty 14 years imprisonment) to a term of 16 months imprisonment commencing on 15 February 2011 with a non-parole period of 12 months. On 1 July 2011 the respondent was personally served with a notice of appeal against the leniency of these sentences. The offences were committed in connexion with sentence proceedings for an offence of breaking, entering and committing an indictable offence (the arson offence). The sentences under appeal were imposed after that for the arson offence but were wholly concurrent with it. The Crown appeals on the ground that the effect of concurrency was to render these sentences manifestly inadequate and that they were, at all events, manifestly inadequate. Background 3On 28 February 2007 the respondent was sentenced in the Local Court for an offence of entering a building with intent to commit an indictable offence, larceny and malicious damage. He was sentenced on each offence to 18 months imprisonment (expiring on 27 August 2008), which was suspended upon his entering into a conditional bond. On 7 December 2007, the respondent broke into business premises in Wagga Wagga and set fire to them. He was arrested for this offence on 18 March 2008 and charged with the arson offence. He was bail refused from 18 March 2008. On 9 July 2008 he was committed for trial and appeared in the District Court on 8 December 2008, when the matter was adjourned to 9 February 2009. On that date he pleaded guilty to the charge. The sentence proceedings in the District Court commenced on 20 April 2009 Facts 4The following account is largely taken from the sentencing judge's reasons and, as I understand it, is not controversial. On 20 April 2009 the respondent conferred with his legal advisors about the sentence proceedings. He told them that his behaviour at the time of the fire had been influenced by the death of his brother, Dwayne, in a motor vehicle accident in Sydney which he said had occurred shortly before the offence was committed. He told them that his partner, Ms McKenzie, would provide that information and other subjective material relevant to his sentence. Accordingly, the respondent's representatives spoke with Ms McKenzie and, amongst other things, asked her to obtain some evidence of Dwayne's date of death and some written character testimonials. The sentence proceedings were adjourned to allow the defence to present relevant material and obtain a report from a psychologist. In a telephone call on 14 March 2009, recorded by police, the respondent told Ms McKenzie that he had lied to the psychologist by telling her his brother died before the fire when he had in fact died after it. On 21 April 2009 the respondent and Ms McKenzie again had a recorded telephone conversation during which the latter said that she was looking for things in relation to his brother's funeral to provide to the court and the respondent said that they would show the day on which he died. Ms McKenzie said she would fix that and was already two steps ahead of him. 5In her report, the psychologist recorded that the respondent had told her that his brother died in late November, before the commission of the offence, and that he had attended the funeral in Sydney. He said he felt anger and guilt over his brother's death, as a result of smoking marijuana and drinking alcohol to excess. He was also angry with his boss and that it was in this combined mental state that he committed the offence. 6On 27 April 2009 Ms McKenzie and the respondent again had a recorded telephone conversation in which Ms McKenzie said, "we went and fixed the newspaper... yeah, we had to dodgy the - we had to fix it". A day or so prior to 30 April 2009 Ms McKenzie and her sister Melissa attended the solicitor's office and gave to the receptionist a number of documents, including a photocopy of a newspaper dated 20 December 2007 showing Dwayne's funeral notice and stating 5 December 2007 as the date of his death. On 28 April 2009 the respondent asked Ms McKenzie what date was said to be the date of his brother's death; she first told him 5 November and then corrected herself to 5 December 2007. The solicitor copied the material to the Crown and counsel and the court in preparation for the sentence proceedings. 7On 30 April 2009 the respondent's sentence proceedings for the arson offence were resumed. He gave evidence on oath to the effect that he had committed the offence largely because he was extremely upset by his brother's death and he was also upset with the way his boss was treating him. His counsel referred to the funeral notice whilst leading this evidence and asked him, "In fact your brother died I think on 5 December 2007, is that correct?" to which the respondent replied, "Yes sir". 8Whilst the offender was giving evidence, a police check indicated that the motor vehicle accident in which Dwayne was killed in fact occurred on 14 December 2007, one week after the fire. When that information was brought to the attention of the Crown prosecutor, the proceedings were adjourned to enable an official death certificate to be obtained. 9The respondent's legal representatives then withdrew and the respondent obtained new legal representation. The original page of the newspaper showed Dwayne's date of death as 14 December 2007, as did the death certificate. As it happened, Dwayne was buried on 21 December 2007. 10The respondent was charged on 9 September 2009 with the present offences and was sentenced for the arson offence on 2 October 2009. The sentencing judge (who also sentenced him for the offences presently under appeal) noted in her reasons that the respondent had informed the psychologist about his brother's death and the emotional effect it had on him and had given evidence that he had been told by his mother as he was leaving work on 7 December 2007 about his brother's death, denying in cross-examination that in fact the date of death was 14 December 2007. The sentencing judge said in her reasons that there could be no doubt that the respondent's brother was killed seven days after the offence was committed. Her Honour said that she was unable to find him remorseful or contrite, given his false excuses explaining why he committed the offence and maintaining that he could not recall events clearly, evidence which she also rejected. Her Honour concluded that the respondent's prospects for rehabilitation were only fair. Her Honour noted that the respondent had misled both the psychologist called on his behalf and the Court, concluding in this respect - "He is not being dealt with for attempting to pervert the course of justice or punished for his deception other than to the extent that it affects any findings I might have been able to make about remorse and contrition or his prospects for rehabilitation." 11The sentencing judge held that the offences were not committed on the spur of the moment and noted that the respondent had involved his co-offender in "his hair brained scheme". 12To complete the chronology of events, the respondent appealed to this court against the sentence imposed on the arson charge but, on 24 March 2011 the appeal was dismissed. Subjective matters 13The respondent pleaded guilty at the earliest opportunity in respect of the perjury offence and a 25% discount was allowed. In respect of perverting the course of justice, his plea was late and a discount of 10% was allowed. No issue is made of these matters. 14The respondent did not give evidence in the proceedings. His background was outlined in the report of Ms Robiliard, forensic psychologist, dated 26 May 2011. A pre-sentence report of 7 February 2011 was also tendered. The respondent was 23 years of age at the date of the offence. The sentencing judge referred to the respondent's extensive criminal antecedents, which "disentitled him to leniency", but accepted that he was "truly remorseful and contrite". It appears her Honour also accepted the respondent's history of an abusive and neglected childhood, in which he was exposed to violence and drug abuse and suffered at the hands of his parents and siblings. Her Honour found that the respondent's prospects for rehabilitation were guarded and he was in need of extensive counselling. 15The judge noted that the respondent appeared to be deeply committed to his relationship with Ms McKenzie and grateful to her family for the support that they had given and continued to give to him. She said that, when he discussed the current offences with Ms Robiliard he apparently broke down in tears and acknowledged he was upset for involving Ms McKenzie. He said that he had no idea just how serious an offence it was, he just wanted to get out of gaol. Ms Robiliard reported that he claimed to be angry with himself for committing the offences and involving his partner. Her Honour noted that psychological tests showed the respondent to be at the low end of the average range of cognitive ability. Depression was demonstrated at an entrenched characteristic level with added reactive attributes. Discussion 16The sentencing judge correctly characterised the offences as "aimed at damaging the administration of justice and... [striking] at the very heart of our system of justice. It is fundamental that confidence be maintained in our criminal justice system and the system must be protected from those who seek to undermine it." Her Honour noted - "The maximum penalties available for these offences recognise the importance of protecting the integrity of the criminal justice system. However, these sections cover a wide range of offending behaviour. The offences can be committed by law enforcement officers, by people seeking financial reward for giving false evidence, the threatening of witnesses who are to give evidence or attempting to influence jurors in criminal trials or even judicial officers." Briefly describing their motives by way, as I think, of placing the offences in the described range her Honour said - "On the part of Ms McKenzie, the offence was committed out of misguided loyalty in the hope of lessening the severity of penalty to be imposed for a very serious offence. On the part of [the respondent], it was an attempt to receive a less severe penalty. Clearly, they did not succeed and... were unlikely to succeed. Such a fraud is easily detected, as was the case." 17And added - "Any penalties to be imposed must not only punish these offenders but make it plain to all in the community that the commission of these types of crimes will normally be visited with serious punishment. General deterrence is the paramount consideration in sentencing for offences of this nature. Having taken all of those matters into account, and indeed the subjective circumstances of the offenders, I find that only custodial penalties will suffice. However, they are matters which fall towards the lower end of the scale constructed for like offences." (The phrase "scale constructed for like offences" is difficult to understand. I apprehend that her Honour meant no more than the range of seriousness from trivial at one end to the most serious class of case on the other marked at each extreme by no or almost no penalty and the maximum penalty. If so, this is unobjectionable though perhaps not informative. However, the phrase used by her Honour suggests the existence of some other scale applicable to "like offences", which introduces an unnecessary element of obscurity.) 18No issue is taken by the Crown with the primary judge's statements of principle. The real contention, as I have mentioned, is that if these principles were applied, the sentences could not have been made entirely concurrent with the sentence which the respondent was already serving. In this respect her Honour said - "The issues of totality arise for consideration in respect of [the respondent]. He is, of course, serving a lengthy custodial penalty imposed by me for a very serious offence. These offences are connected with that offence. They arose whilst he was awaiting sentence. I find that if the sentences were ordered to be accumulated, or even partially accumulated, that would result in a disproportionate penalty given the nature of the offending and the purpose for which these offences were committed. It is therefore appropriate that they be served concurrently with the sentence he is now serving. 19Strictly speaking, the present offences were not connected with the arson offence itself but I think her Honour was merely pointing out that they were connected in the sense that they arose in the sentence proceedings. 20There is no doubt that the principle of totality was relevant here. Although complete concurrency for separate crimes may be appropriate at times, "... it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence can not comprehend the criminality of the other": R v Cutrale [2011] NSWCCA 214 per Hidden J at [32]. I would not find that the sentences, as such, were manifestly inadequate. 21In this Court, the Crown prosecutor pointed to the circumstance that it must be accepted that the sentence for the arson was appropriate and thus an additional period of imprisonment must inevitably have been imposed for the further offences. This argument has a certain logical persuasiveness but the approach is mistaken: it turns mere chronology into a substantive rule. The true question is whether it would have been an error (in the sense of House v R [1936] HCA 40; (1936) 55 CLR 499) to conclude, as her Honour in effect did, that the criminality involved in the arson offence and that involved in the present offences was adequately reflected in the overall sentence. Put otherwise, if the sentences had been imposed at the same time with some accumulation - thus with a somewhat lower sentence for the arson - would the effective sentence have been manifestly too lenient? The arson sentence was well within the available range but it was not at the bottom of the range, and there would have been room therefore to impose a significantly lesser sentence for that offence and accumulate by a compensating degree the present sentences, achieving the same total sentence as in fact resulted. It seems to me that this was the kind of reasoning implicitly adopted by the sentencing judge when her Honour decided that the totality of criminality was adequately dealt with by the overall sentence and that adding further punishment would be excessive. Conclusion 22Here, the respondent was already serving a total term of imprisonment of something over six years and three months with a non-parole period of three years that commenced on 18 March 2009. He falsified a newspaper report in respect of the date of his brother's death and lied about being affected by it when he committed the arson offence. The lie was quickly and easily discovered. He suffered an appalling childhood and his intellectual functioning is at the lower end of average. This offence was an immature attempt to get undeserved sympathy for a crime of real gravity. It was not a lie designed to help him or another to escape conviction. There is certainly a proper basis for concluding that, even so, some additional period of imprisonment was appropriate. However, I would not conclude that the sentencing judge erred in the exercise of her discretion. Even if I were mistaken about this, I would, in the circumstances, accumulate only to an extent which would justly be characterised as tinkering. Accordingly, I propose that the appeal be dismissed. 23Hoeben J : I agree with Adams J.