R v Pacey [2005] QCA 203

Director of Public Prosecutions (Queensland) for the respondent

[1] WILLIAMS JA: This is an application for leave to appeal against a sentence of two years imprisonment, suspended after serving six months with an operational period of two years, imposed on the applicant after he pleaded guilty to perjury. The background circumstances are somewhat unusual and need to be set out in some detail.

[2] The applicant was born on 17 January 1986 and was thus just short of his 17th birthday when on 7 January 2003 he was involved in an incident in the Southbank Parklands. On that date a young man named Batley, aged 15 years, was walking with a male friend named Hunt through the Southbank Parklands. At about 10 pm they were approached by two males (the applicant and Bartlett), one wearing a red shirt, blue pants and a baseball cap. There was a third male named Rix in that group who was seated nearby. The male in the red shirt asked Hunt if he had any money. On receiving a negative reply the man in the red shirt turned to Batley and pushed him in the chest saying, "give us your wallet" a number of times. The assailant was armed with a small wooden bat approximately one foot in length. He was waving it around threatening Batley with it. Batley surrendered his wallet to the assailant and was told to "keep walking or I'll hit you with the fucking bat".

[3] The assailant then removed $9.80 from the wallet and then threw it back to Batley.

[4] A complaint was made and shortly afterwards police located three males including one wearing a red shirt. The person wearing the red shirt at that time was Bartlett, but it was the applicant who had possession of $5.40 and the wooden bat. The applicant told police that Bartlett asked him to hold the money and bat which he had done. He said that he didn't know there had been a robbery at that stage and he wouldn't have held it if he had known that.

[5] On the basis of information provided to police, including a written statement by the applicant, Bartlett was charged with robbery and he faced a committal hearing on 3 April 2003. The applicant was called as a Crown witness at that hearing. Counsel for the prosecution at sentence summarised what occurred as follows:

"He swore an oath on the Bible during the committal hearing and he informed the Court he did not participate in the robbery but he did peripheral actions relating to the robbery from where he was sitting about 30 to 40 metres away. He indicated that Bartlett was the person that had robbed the complainant and he gave details of how Bartlett made threatening gestures towards the complainant and Mr Hunt."

[6] In the course of his submissions, counsel for the applicant at sentence made the following statement with respect to what occurred at the committal:

"Nonetheless, of course, he did give the evidence that he did at the committal hearing, although I should point out one matter in that regard and that is it was acknowledged at the committal hearing that the detail that he gave was less florid than that contained in his statement and I think my learned friend might have said that he was asserting that - at the committal hearings that the other person Bartlett was brandishing the stick. Really, the highest his evidence went to at the committal hearings was that he observed Bartlett and the other person approach the complainant and then, by inference, obviously, the events occurred at that time. So it's fair to say this, that his statement - his evidence at the committal didn't go as far as he had asserted in his statement and that probably, in my submission, demonstrates the fact that he was, even at that stage, having some real pangs of conscience as to the mess that he had got himself into."

[7] The committal hearing was adjourned on 3 April and about a month later was concluded with Bartlett being committed for trial on a charge of robbery. He was granted bail. Bartlett's trial was to be contested and it was not until about March 2004 that a trial date was fixed for about June 2004. Thereafter the police went about contacting the prosecution witnesses for the trial. That brought detectives into contact with the mother of the third person Rix. She informed police that it was the applicant who had committed the robbery. In consequence on 24 April 2004 police interviewed the applicant and at that time he admitted that he had committed the robbery and that he had given false evidence against Bartlett. Apparently immediately after the incident he had given his red shirt to Bartlett and that is why Bartlett was wearing that shirt when the police first intercepted the group. When interviewed in April 2004 the applicant said that he had given false evidence against Bartlett in order to exonerate himself and because he was angry with Bartlett; apparently there had been some verbal fight over some girls earlier on the evening in question. The applicant also said he was angry and intoxicated at the time and he wasn't sure why he robbed Batley. He did admit that during the robbery he was in possession of the wooden bat.

[8] In consequence of that the charges against Bartlett were dropped and an indictment presented against the applicant charging him as follows:

"that on the seventh day of January, 2003 at Brisbane in the State of Queensland, Warrick Lyall Pacey robbed Ian Nathan Batley.

And Warrick Lyall Pacey was armed with an offensive instrument, namely a wooden baton.

that on the third day of April, 2003 at Brisbane in the State of Queensland, Warrick Lyall Pacey in a judicial proceeding, namely a committal hearing, knowingly gave false testimony to the effect that another person had committed an armed robbery, and the false testimony touched a matter which was material to a question then depending in the proceeding."

[9] It should be noted that by 3 April 2003 when the perjury was committed the applicant had passed his 17th birthday and was therefore an adult for purposes of the criminal law.

[10] On 18 February 2005 the applicant pleaded guilty to the two counts on the indictment. The learned sentencing judge recognised that the armed robbery offence was committed whilst the applicant was a juvenile but he regarded the perjury offence as the more serious. In consequence he approached the sentence on the charge of armed robbery by dealing with the applicant as an adult, and sentencing him to six months imprisonment wholly suspended for two years. There is no appeal against that sentence.

[11] The applicant had no previous convictions and that was a matter stressed by the learned sentencing judge. It is also clear that the learned sentencing judge fully recognised the youth of the applicant; on a number of occasions he referred to the fact that the applicant's age meant that he could "anticipate compassionate treatment". But he went on to describe the events leading to the perjury charge as "shabby indeed". The learned sentencing judge then noted that what happened when the police first intercepted the group could be "a bit spur of the moment or as a result of a degree of panic" but that was not a relevant consideration when it came to "knowingly swearing on oath in court that Bartlett was involved in the robbery and you were innocent". The learned sentencing judge then went on to state, correctly in my view, that it was "a more serious situation when someone, on oath, falsely inculpates a person in an offence, and here, of course, it was no trivial offence. It was armed robbery."

[12] After referring to a number of authorities, to which I will refer later, the learned sentencing judge said that courts have stated frequently that "the deterrent element is more than ordinarily important" when dealing with perjury. In consequence: "Despite your youth, there clearly has to be a deterrent sentence here."

"In relation to both counts there has to be allowance for cooperation in the administration of justice by virtue of the plea of guilty. There has to be allowance for your age, the fact that you were only about two and a half months past 17 when you committed the perjury on oath in Court. There has to be allowance for the fact that you had no previous convictions. . . .You seem to have a reasonable work record."

[14] It was in those circumstances that the sentences referred to above were imposed.

[15] One error in the sentencing remarks should be noted. The learned judge said: "When questioned by the police on the 26th of April 2004 - that is 23 days after you gave evidence - you did admit that Bartlett was not involved in the robbery." In fact the committal hearing when the evidence was given was on 3 April 2003 and it was one year and 23 days later that the applicant made the relevant admission to investigating police. For that period in excess of a year Bartlett had been on bail and facing the serious charge of robbery. Further, it should be noted that it was not the applicant who voluntarily went to the police and admitted that he had given false evidence. Rather, it was because the mother of Rix told police of some information she had received that led police to specifically question the applicant about the relevant events. It was only when specifically questioned that the relevant admissions were made. That is of some relevance on the issue of remorse.

[16] The crime of perjury is defined in s 123 of the Criminal Code Act 1899 (Qld) ("the Code"), and the punishment is provided for by s 124. Subsection (1) thereof provides that the basic penalty is imprisonment for 14 years; but as provided by subsection (2) if "the offender commits the crime in order to procure the conviction of another person for a crime punishable with imprisonment for life, the offender is liable to imprisonment for life." Though the applicant was charged with armed robbery the perjury charge relates to the charge against Bartlett, and it is not clear from the material before the sentencing judge whether he was charged with armed robbery (punishable by life imprisonment) or robbery (punishable by 14 years imprisonment). Further, the indictment did not allege a circumstance of aggravation invoking s 124(2) of the Code (see Form 78). In consequence it appears that the maximum penalty which could have been imposed on the applicant was 14 years imprisonment.

[17] On the hearing of the application for leave to appeal counsel for the applicant contended that the sentencing discretion miscarried because the learned sentencing judge failed to give any or sufficient regard to the principle in s 9(2)(a)(i) and (ii) of the Penalties and Sentences Act 1992 (Qld). It was further submitted that the learned sentencing judge erroneously placed too much weight on the aspect of deterrence and denunciation and failed to give sufficient weight to the matters of mitigation so that the punishment was not just in all the circumstances. In the latter regard, reference was made to s 9(1)(a), (c) and (d) of that Act. Specifically, it was submitted that, despite its seriousness, perjury did not mandate a custodial sentence.

[18] In dealing with the evidence counsel for the applicant pointed to the fact that the applicant was a juvenile when he gave his initial statement to police and he felt committed to that statement. He also referred to the assertion, not disputed by the prosecution, that it was the applicant who informed Mrs Rix of the true circumstances of what occurred. Emphasis was also placed on the applicant's cooperation with authorities since making the true admission in April 2004, his familial support, and his full time employment.

[19] Against that counsel for the respondent emphasised the serious nature of the offence of perjury which strikes at the heart of the administration of justice, and contended that the offence was more serious when the perjury falsely implicated a person in a serious offence. In those circumstances deterrence was of greater importance than in a case of perjury without that aggravating feature. It was conceded by the prosecution that there had to be an allowance for the plea of guilty, the youth of the applicant, the fact the applicant had no previous convictions, and the extent of the applicant's cooperation with authorities.

[20] In those circumstances it is necessary to refer to the authorities. A number are of significance because they involve sentences imposed by this Court on appeals by the Attorney-General.

[21] The most relevant authorities are R v Coombes [2003] QCA 388, R v Triantafillopoulas; ex parte Attorney-General [1999] QCA 336 and R v Ozdemir; ex parte Attorney-General [1993] QCA 463. Coombes was a mature woman with an excellent work history and no prior criminal history. She pleaded guilty to one count of attempted fraud, for which she was sentenced to 18 months imprisonment, and one count of perjury for which she was sentenced to two and a half years imprisonment. The sentences were made concurrent and an order was made that they be suspended after serving 10 months for an operational period of four years. Her house was broken into and some items stolen. In broad terms, subsequently she complained to police that some valuable rings were stolen, and also made an insurance claim with respect to theft of the rings. A man named Davis was arrested on numerous housebreaking charges and he admitted stealing some property from the house occupied by Coombes but denied stealing any rings. Eventually Davis pleaded guilty to all the charges he faced, including the theft of the rings, so that matters against him could be finalised. A subsequent search of Coombes' residence located the four rings allegedly stolen. That gave rise to the charges of attempting to defraud the insurance company and perjury. The latter was based on the fact that she had provided the sworn statement to the police in respect of the rings alleged to have been stolen and that was tendered at the hand up committal of Davis. Philippides J, in delivering the principal judgment in this court, referred to the fact that the perjury had put an innocent person in danger of serving 12 months imprisonment and Coombes knew full well the implications of making the false statement. There was no indication of remorse; the convictions were after a trial. Notwithstanding the excellent work history, lack of prior criminal history and health difficulties the court held that the sentence imposed was within range. In her reasons the President said: "Perjury strikes at the essence of the criminal justice system and the public's confidence in it. Here, an offender was subjected to the risk of a longer period of loss of liberty because of the applicant's perjury." Dutney J regarded it as a "particularly aggravating feature" that a person had been wrongly charged with stealing as a result of the perjury.

[22] Triantafillopoulas was respondent to an appeal by the Attorney-General against a sentence of 12 months imprisonment to be served by way of an intensive correction order; that sentence was imposed on a 27 year old man who had pleaded guilty to perjury. The offender was originally sentenced for offences which essentially consisted of a home invasion involving robbery and the taking of a very substantial amount of money. On sentence he contended that he had been persuaded to commit the offences by the principal culprit, one Kozionas. He indicated willingness to give evidence against Kozionas, and that was taken into account in determining his sentence for those offences; a non-custodial sentence was imposed. However, when called to give evidence against Kozionas in committal proceedings the offender completely recanted his assertion that Kozionas was involved and as a result the charges against Kozionas were withdrawn. It was that evidence which founded the perjury charge. In imposing the sentence which he did the learned sentencing judge referred to the proposition that imprisonment was a last resort. This court held that the sentence in fact imposed failed to "reflect the seriousness of the offence". Reference was again made to the impact of perjury on the administration of the criminal justice system and for that reason it must be "regarded very seriously". The court, having regard to the circumstance that it was concerned with in the Attorney's appeal, imposed a sentence of two years imprisonment with a recommendation for eligibility for parole after nine months.

[23] Ozdemir was convicted after a trial of two counts of perjury and sentenced to two and a half years imprisonment, wholly suspended for a period of four years. The Attorney-General appealed against that sentence. The perjury arose out of evidence given by the offender in an action instituted by him for personal injuries. In the judgment of this court reference was to made to the absence of remorse and the seriousness of the offence. Particular reference was made to s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). The mitigating factors in that case were that the offender was 49 years of age and until the commission of the offences in question had led a blameless life. This court stressed the need to "impose effective deterrent sentences on convictions of perjury." The court said that it "would ordinarily require the imposition of a term of imprisonment; anything less is unlikely to be a sufficient deterrent." In consequence this court held that it was wrong for the sentencing judge to wholly suspend the sentence and substituted a sentence of two years imprisonment but because of the mitigating factors referred above recommended eligibility for parole after serving nine months.

[24] R v Hunter; ex parte Attorney-General [2000] QCA 97 was also an appeal by the Attorney-General against the sentence imposed with respect to an offence of perjury. The offender was 31 years old, and had no prior criminal history, when she committed four counts of perjury involving lying on oath during the course of a civil trial. The conviction was after a trial in the District Court. She was sentenced to two years imprisonment with a recommendation that she be eligible for release on parole after serving five months. This court, after noting that the maximum penalty was 14 years imprisonment, stated that the legislature viewed perjury as "a very serious offence, striking as it does at the heart of the administration of justice." The court noted that the conduct constituted "serious acts of perjury, over a sustained period, involving a very large sum of money." It was also noted that she had suffered a major depressive episode and general anxiety. This court increased the sentence to three years imprisonment with a recommendation for parole after serving one year of that term.

[25] R v Smith; ex parte Attorney-General [2000] QCA 390 was another appeal by the Attorney-General; the offender there, a former police officer, pleaded guilty to 17 counts of official corruption and one count of perjury. He had given evidence before the Criminal Justice Commission falsely denying having been given money for favouring a particular tow truck operator. The sentence for perjury at first instance was two years imprisonment, concurrent with the other sentences, and suspended after two months for an operational period of three years. It was relevant in that case that the offender's pleas of guilty were coupled with a preparedness to give evidence against the tow truck operator who paid the money. This court considered that the sentence imposed was "plainly inadequate"; in consequence the penalty imposed for the perjury by this court was imprisonment for two years, suspended after six months for an operational period of three years.

[26] Brief mention should also be made of three earlier cases: R v Back [1992] QCA 409, R v Wood; ex parte Attorney-General CA 271 of 1991, and R v Evans [1996] QCA 553. Back was aged 36 and had no previous convictions. The two counts of perjury in that case arose out of false evidence given in the course of civil action for personal injuries. He was sentenced to two and a half years imprisonment for the perjury charges; he was also dealt with on some false pretence counts. This court referred to the seriousness of the offence, the necessity for deterrence, the early plea of guilty, and the offender's age and lack of previous convictions. Nevertheless it refused the application for leave to appeal against the sentence.

[27] Wood was respondent to an appeal by the Attorney-General against a sentence of 12 months imprisonment imposed for the offence of perjury with a recommendation of eligibility for parole after three months. That involved a plea of guilty to giving false evidence in a civil trial claiming damages for personal injury. This court observed that the head sentence could be regarded as "rather low" but said there was a number of unusual aspects. The offender was aged 49 years and had no previous convictions. The court dismissed the Attorney's appeal.

[28] Evans was respondent to an appeal by the Attorney-General; it was a rather unusual case. The offender had pleaded guilty to perjury and was sentenced to imprisonment for two years and three months. However that sentence was not made cumulative on an earlier sentence of three years imprisonment imposed with respect to drug offences. The perjury arose out of the sentencing process with respect to those drug offences. This court noted that the offender "quite deliberately gave false evidence on oath". It came to the conclusion that the sentence for the perjury should be cumulative upon that imposed with respect to the drug offences but made a recommendation for eligibility for parole which would have entitled the offender to apply for parole nine months after he would have become entitled pursuant to the sentence for the drug offences.

[29] It can be seen from that review of the authorities that actual imprisonment has almost invariably been imposed although in many instances the offender had no previous convictions and often there were other mitigating factors.

[30] In my view, the offence in this case was in many ways more serious than the offences dealt with in the authorities to which I have referred. Here the applicant very deliberately gave evidence on oath at committal proceedings strongly implicating an innocent man in the commission of the offence of robbery, knowing full well that it was he himself who was guilty of that charge. As a result of the perjury Bartlett was on bail for some 12 months and his liberty was significantly impaired during that period. Further, as noted, the applicant himself did not voluntarily bring to the notice of the authorities that he had lied on oath. He was obviously quite prepared to allow Bartlett to face trial on the robbery charge; it was only because of the intervention of Mrs Rix that authorities were alerted to the true position. The perjury in this case highlights the consideration referred to in a number of the authorities, namely that perjury attacks the very heart of the criminal justice system.

[31] The only feature distinguishing the applicant from those offenders who have received significant actual custodial sentences for less serious perjury is his youth. The ultimate question for this court is whether or not the youth of the offender results in the conclusion that the sentence imposed was manifestly excessive. The Penalties and Sentences Act 1992 (Qld) in saying that imprisonment should only be imposed as a last resort, and that a sentence which allows the offender to stay in the community is preferable, does not mean that a sentence of actual imprisonment should not be imposed where the circumstances of the case require it. In my view, this case was so serious as to demand the imposition of a sentence of imprisonment. A head sentence of two years imprisonment for this perjury was towards the lower end of the range established by the authorities to which I have referred. Ordering that the sentence be suspended after serving six months in my view gave adequate consideration to the youth of the applicant and the other mitigating factors. The sentence was clearly within the range established by the authorities and no basis has been established for this Court interfering with it.

[32] In my view, the application for leave to appeal against sentence should be refused.

[33] JERRARD JA: In this application I have read the reasons for judgment and order proposed by Williams JA, and I respectfully agree with those.

[34] MULLINS J: For the reasons given by Williams JA I agree that the application for leave to appeal against sentence should be refused.