At his sentencing his learned counsel indicated to the Court that the respondent here had been persuaded to commit the offence by the principal culprit, one Kozionas, and that the respondent had provided the police with a statement signed by him, together with a statement, again signed by him, of his willingness to give evidence against Kozionas. Although His Honour indicated that he was not applying section 13A of the Act, His Honour, surprisingly, imposed a sentence of an intensive correction order for 12 months on that occasion.

There were a few other matters of a minor nature in that sentence, but it is difficult to reconcile it with a reasonable sentence other than that considerable weight must have been given to his willingness to give evidence against Kozionas. The other matters might be mentioned, namely that the respondent had had a difficult childhood with a certain amount of trauma, that there were some favourable references, and that a report had been provided by a psychologist in terms which are unfortunately familiarly sympathetic and without any serious scepticism or scrutiny.

When the time came for the respondent to give evidence against Kozionas in the committal proceedings he completely recanted his account that Kozionas was involved, and as a result the charges against Kozionas were withdrawn.

It is his perjury in that respect that formed the basis of the charge the sentence of which is now a subject of review. The sentence was imposed by the same sentencing Judge as sentenced him in respect of the armed robbery charge. His Honour referred to that sentence and said that the circumstances of the sentence would have been threatening from the respondent's point of view because Kozionas' legal representatives had sought and obtained permission to be present to hear the details of the submissions made.

The learned sentencing Judge said that in the end he had formed the view in respect of the original sentence that the respondent was a reformed character who was willing to give evidence against Kozionas regardless of what happened and no discount was given in that respect. He said it would be quite wrong for the Court to proceed on the basis that Kozionas had committed any offence. He said the explanation for the respondent recanting was his being fearful of the consequences for himself and this was said to be corroborated by incidents referred to from the Bar table by counsel for the respondent. However, the incident particularly referred to, namely an assault, occurred after the perjury and there is little else to relate it to any threat.

His Honour referred to the proposition that imprisonment was a last resort. He said that the respondent had performed well on the intensive correction order previously imposed and that was true at that time.

However, the sentence that has been imposed here fails to reflect the seriousness of the offence. Perjury is a most deleterious factor in the criminal justice system and it must be regarded very seriously. That perhaps is emphasised in a case such as this where the respondent has used the original statement that he had made as a means of alleviating the sentence that was to be imposed upon him in respect of the original count.

In addition, though it is not something to be used against him in respect of these matters, it would seem that the rather doubtful views of the psychologist upon whom His Honour relied, is negated to a certain extent by the respondent's current behaviour in that he has failed badly in respect of the current sentence that is the subject of the present review. In fact, he failed to appear upon an appointment that was required of him on 21 May 1999 and proceedings are currently under way in respect of that breach.

There is little more to be said. The gravity of the offence itself is such that the features of mitigation that were referred to and relied upon are not sufficient to justify a non-custodial order. The appropriate sentence in this respect - having regard to the circumstances that this is an Attorney's appeal and that to some minor extent the respondent may have complied with the original sentence, an appropriate sentence to be imposed is one of two years' imprisonment with a recommendation that he be eligible for parole after nine months.

McPHERSON JA: Yes, I agree with what has been said by Mr Justice Derrington and with the order that he proposes.

McPHERSON JA: The order is that the appeal is allowed and the sentence will be varied as stated by Mr Justice Derrington. Do we need a warrant?

McPHERSON JA: Yes, a warrant will issue for the arrest of the respondent, such warrant to lie in the Registry for seven days or until further order.