R v WHITE No. SCCRM-98-262 Judgment No. S43 [1999] SASC 43

1. MILLHOUSE J. I agree. The decision of the Court therefore is appeal allowed but only to the extent of reducing the head sentence to 12 months and the non-parole period of six months.

DUGGAN J. The appellant pleaded guilty to a charge of attempting to dissuade a witness from attending to give evidence against a woman named Fosdike. Fosdike was charged with making a false report to the police and attempted false pretences. The learned sentencing judge sentenced the appellant to imprisonment for 20 months with a non-parole period of nine months. He then suspended that sentence upon condition that the appellant enter into a recognisance to be of good behaviour for a period of two years. Other relevant conditions were that she perform 100 hours of community service during the period of 12 months from the date of the sentence and that she obey the directions of a community services officer.

The offences took place in the following circumstances: At the time of the incident Ms Fosdike lived in a cul-de-sac opposite the house of a woman called Melissa Kendrick. On 18 May 1997 Fosdike reported a housebreaking and larceny which she said had taken place at her premises. She also made a claim on her insurance company for the loss of approximately $18,000 worth of property. It was established subsequently that the claim was false and Fosdike was charged with the offences to which I have referred. It would appear that Fosdike told Melissa Kendrick of the plan to make the false claim and Kendrick provided a statement to the police in which she revealed the discussion she had with Fosdike. As a result Kendrick became a potential witness in the proceedings commenced by the police against Fosdike.

The appellant and her husband were acquaintances of Fosdike. They went to see Fosdike on the occasion that gave rise to the charge. They were told that Kendrick had given the statement to the police. The appellant's husband then walked over to Kendrick's home and threatened her as to her role in the matter. The appellant then went over to Kendrick's house. She berated Kendrick for giving the statement to the police. She threatened Kendrick by saying that she would assault her and she said she would report Kendrick to the authorities for neglecting the care of her children. She was there for only a few minutes.

The appellant was 27 years of age at the time of sentencing. She had no prior convictions at the time she faced the court on this occasion. Her counsel informed the learned sentencing judge that she had lived a hard, difficult life; that she had problems with her health; and that at the age of 19 years she had spent 11 months in Glenside Hospital as a result of a nervous breakdown. She has two sons aged six and nine.

The appellant has argued that the sentence was manifestly excessive. There is also a complaint of disparity said to be apparent on a comparison of the appellant's sentence with that imposed upon Fosdike for the attempt to defraud the insurance company and making the false report to the police. The sentencing judge sentenced Fosdike to imprisonment for ten months in respect of those matters and suspended the sentence.

Mr Cuthbertson, for the appellant, has argued that there was a clear disparity between the sentences of the appellant and Fosdike. In my view, however, the different offences charged make a comparison inappropriate in the present case. They fall into quite different categories of offending and it would be inappropriate to interfere with the sentence on the basis of disparity. This is not a case of the type referred to by Kirby J in Postiglione v R, [1997] HCA 26; 189 CLR 295 at 338, as a "situation demanding comparison and contrast". Any comparison and contrast between the two sentences in this case would be invidious.

However, the claim that the sentence was manifestly excessive for other reasons requires closer consideration. It would seem that the sentence was reduced by 25% by reason of the appellant's plea of guilty. The trial judge considered that a sentence of approximately 26 months would have been appropriate but for the reduction. The trial judge rightly underlined the seriousness of an offence of this nature. Interfering with a potential witness is always a serious matter and would usually attract a deterrent sentence. Thomas' Current Sentencing Principles p430_f_ provides some examples of the sentences which have been passed for offences of this type in the United Kingdom. However, it is difficult to derive any tariff from these sentences bearing in mind the wide variety of circumstances in which offences of this nature are committed. But when one looks at the sentence in this case it demonstrates to my mind that his Honour failed to have sufficient regard to the particular circumstances of the offence and, further, that he failed to give sufficient consideration to the fact that this was the appellant's first appearance on a criminal charge.

As I have observed, it goes without saying that conduct which is to the detriment of the administration of justice is considered by the courts as being a serious breach of the criminal law. On the other hand, as I have also pointed out, such conduct takes many forms which are of varying degrees of seriousness. In the present case there is little doubt that the appellant acted on the spur of the moment and as a reaction to the information which she had just received. She followed her husband to Ms Kendrick's home and she was there for only a few minutes. Anger rather than a premeditated attempt to dissuade the witness from giving evidence seems to have precipitated her actions.

In my view, the argument that this sentence is manifestly excessive has been made out. I consider that an appropriate sentence would be imprisonment for 12 months with a non-parole period of six month months to be suspended on the same terms and conditions.

I would allow the appeal for the purpose of substituting the sentence which I have indicated as being appropriate.