R v Wiltshire [1999] WASCA 113

Sentencing Act s 76(3)(a)

Appellant : Acting State Director of Public Prosecutions

Catts (1996) 85 A Crim R 171

Dempsey v R, unreported; CCA SCt of WA; Library No 7623; 24 April 1989

Lowe v R [1984] HCA 46; (1984) 154 CLR 606

Morex Meat Australia Pty Ltd and Doube v R [1995] QCA 154; (1995) 78 A Crim R 269

R v Grein [1989] WAR 178

R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998

Radenkovic [1990] HCA 54; (1990) 51 A Crim R 451

Tait (1979) 46 FLR 386

1 IPP J: This is a Crown appeal against sentence. The respondent pleaded guilty to two offences, namely conspiracy to pervert the course of justice and interfering with a dead human body. The respondent committed the offences concerned while on parole for offences relating to the sale and possession of heroin. He was initially sentenced by the learned sentencing Judge to two concurrent terms of 18 months' imprisonment in respect of the two offences. Her Honour suspended each of the sentences for a period of two years. Section 76(3)(a) of the Sentencing Act, however, precluded the imposition of a suspended sentence in circumstances where the relevant offence was committed at a time when the offender was subject to an early release order, which includes a parole order. When her Honour realised this she recalled the sentences she had imposed on the respondent and re-sentenced him by requiring him to complete 100 hours of community service.

2 The Crown appeals against this sentence principally on the ground that the offence of perverting the course of justice was so serious that it required a sentence of immediate custodial imprisonment.

3 In April 1988 the respondent resided with his brother, Maxwell Wiltshire, in Northstead Street, Scarborough. In the early evening of Monday 13 April 1998 a friend of the respondent's one Paul Graham Dowding, now deceased, visited the respondent at his home in Northstead Street. At some stage on 13 April, to the knowledge of the respondent, the deceased had injected himself with a quantity of heroin. After having some drinks together, the deceased and the respondent went out. When they returned, the deceased sat at the end of the respondent's bed listening to music, obviously affected by heroin. The respondent fell asleep. When he woke up the next morning he found the deceased dead on the bed.

4 The respondent immediately told his brother what had occurred. They decided that it would be in their best interests to move the body from the premises. They wrapped the deceased in a doona, carried him from the house and placed him in the rear of the deceased's vehicle which had been parked at the front of the premises. The respondent drove the vehicle to a beach carpark on West Coast Highway, City Beach, whilst his brother followed in a second vehicle. They abandoned the deceased's vehicle at that location with the body lying in the back, partially covered. The respondent and his brother agreed to attempt to conceal what had occurred.

5 Later that day (14 April 1998) the deceased's brother called the respondent's home and enquired where the deceased was.

Maxwell Wiltshire told him that the deceased had left at about noon that day and had not returned. On 19 April 1998 the police executed a search warrant at the Northstead Street property. They found no relevant evidence. The respondent told the police that the deceased had left his house at about 6.30 pm on 13 April and he had not seen the deceased since. On 13 May 1998 the police interviewed the respondent again and the interview was recorded by video. In the course of this interview the respondent admitted that he had lied to the police on 19 April 1998 and proceeded to tell the police what, in fact, had happened.

"Because of the deception of the offenders, the police were deprived of a proper opportunity to investigate the death of [the deceased]. The body was not found for two days and it was away from the scene of the death when found. When police searched the house of the offenders on 19 April 1998 there was no remaining evidence, or they could not find any remaining evidence, as everything had by that time been disposed of by the offender Timothy Wiltshire ... Therefore, any ability the police may have had to connect [the deceased's] death with any person was lost."

Counsel for the Crown submitted that the gravamen of the offence of perverting the course of justice lay in the fact that, by reason of the conduct of the respondent and his brother, the Crown was not in a position to investigate the circumstances of the death of the deceased immediately. It was not, however, suggested that there were any suspicious circumstances surrounding the death of the deceased. The autopsy apparently established that the deceased died from a heroin overdose.

7 The respondent's antecedents constituted compelling mitigating circumstances. He was nearly 40 years old at the time of the offence. In about 1986 he was involved in a motor cycle accident which caused him a number of physical problems which, at the time of sentencing, were still current, albeit to a lesser degree. In consequence of the accident, he suffered from a vascular necrosis of the right hip and both elbows. He began to suffer from chronic pain, particularly from his hip condition, and his physical condition deteriorated.

8 In about 1993, for the first time in his life, the respondent began to consume heroin and cannabis to relieve his pain. At about this time he also changed his occupation (which had been in the fashion industry), and became employed as a full time care attendant. Until 1993 he had a virtually unblemished record. He then began to commit drug-related offences, for which he was convicted. By 1996 he was required to give up work as his physical condition was such that he was unable to move patients. He became unemployed. This brought about a major change in his life as until then he had been actively employed and occupied. He committed further offences, for which he was convicted. According to the respondent's parole officer, his "offending history" was "closely connected to his desire to relieve the physical pain he had experienced in recent years". The officer expressed the view that, particularly in the light of the hip replacement operation that had been undertaken, the respondent "presents as a low risk for the safety of the community". Whilst in prison the respondent appears to have done his best to rehabilitate himself. He completed about 20 courses and was regarded as a model prisoner.

9 In prison, the respondent became acquainted with the deceased. Each was due to be released at about the same time, and they arranged to meet. It was pursuant to that arrangement that the deceased came to the respondent's house on 13 April 1998. The respondent had been released on parole seven days before.

10 These matters bear on the respondent's conduct in disposing of the body and in taking steps to conceal the fact that the deceased had died while in the Northstead Street premises. The respondent panicked when he woke up to find the deceased dead on his bed. He was scared that he would be accused of having been involved in some way in the deceased's death. He thought his parole would be revoked. He tried to distance himself from the death by taking the body to the carpark in City Beach and leaving it there. For the same reason he instructed Maxwell Wiltshire to lie to the deceased's brother and he, himself, lied to the police.

11 It is plain from the remarks of the learned sentencing Judge when first sentencing the respondent that her Honour had a proper appreciation of the gravity of the offence of perverting the course of justice committed by the respondent. The learned Judge said:

"The seriousness of this offence is obvious. The authorities were not given an opportunity to investigate the death at the scene of the death although there is nothing, as I understand it, in the post mortem report that would indicate that the death was anything other than an heroin overdose, nor was there any suggestion in any matters before me that either of you were involved in any way either in [the deceased's] death or in the use of the drugs that caused his death.

It is also of course serious because of the fact that your behaviour not only prevented the authorities from investigating the death in the appropriate way and at the appropriate time but of course you also exacerbated the pain and grieving of [the deceased's] family and friends because of the circumstance in which his body was found, the cloud that necessarily then covers his death, albeit for a short time until that was explained through the autopsy, and of course the natural concern and pain in relation to the realisation that his dead body was handled in this way."

12 Her Honour accepted that "the seriousness of the offence would normally call for an immediate term of imprisonment". She proceeded:

"I have, however, had an opportunity of considering carefully your personal circumstances and I am persuaded that they are such that it is appropriate in your unusual circumstances to suspend that term of imprisonment."

Her Honour observed that the respondent's "performance on parole, both on a previous occasion and on this occasion, has been described as excellent". It was pointed out that the respondent's performance in this respect was the more commendable because it occurred "in the context of the chronical physical pain [the respondent] experienced from a deteriorated hip joint which followed a motorcycle accident in 1987". For all these reasons, the learned Judge imposed a suspended sentence of 18 months imprisonment on the respondent.

13 When re-sentencing the respondent (after the implications of s 73(6) of the Sentencing Act had been appreciated) her Honour stated:

"I think it is quite clear from my remarks [when previously sentencing the respondent] that I did not consider that an immediate term of imprisonment was appropriate because of this offender's circumstances ... It was certainly not my intention that as a result of my disposition, this offender would serve a term of imprisonment. I consider it most unlikely that that was something that would occur as a result of the suspension."

Her Honour proceeded to order the respondent to complete 100 hours of community service over a period of 12 months. By the time this matter was argued before this Court the respondent had completed the community service he had been ordered to undertake.

14 I accept that ordinarily the offence of perverting the course of justice will be so serious as to require a custodial sentence. But I do not accept that this is an inevitable consequence. The learned sentencing Judge said on more than one occasion that the circumstances of the respondent's offending were particularly unusual and I must agree, with respect, with her. There was no intent to conceal any crime, and there was no suggestion that any crime was concealed. The only purpose that underlay the respondent's conduct was the preservation of his liberty while under parole. He was motivated by his perception that, by reason of his history and his heroin-related offences, he would be suspected of being involved in the death of the deceased, particularly as the latter died as a result of a heroin overdose. These matters tend to reduce the criminal culpability involved which, in my view, was very much towards the bottom of the scale.

15 Counsel for the appellant submitted, further, that there were aspects of the respondent's conduct which made the offence of perverting the course of justice committed by him so serious that a custodial term was called for. These were that the manner in which the deceased died was "covered up for a month" (with the consequence that the grieving relatives did not fully know the circumstances of the deceased's death for a month), and the fact that the authorities were hampered in their investigations. There is considerable force in these submissions. I agree that the concealment of the circumstances from the authorities and the relatives was serious. I accept that these matters could well persuade a judge to impose a custodial sentence. However, in my opinion, they did not compel such a conclusion in the present case. I have pointed out that the degree of seriousness of the offence was at the lower end of the scale and the mitigatory circumstances were powerful indeed. Although the issue is certainly finely balanced I consider that it was within her Honour's discretion to impose the community based order that she did.

16 I should say that any doubts that I might have had have been removed by two factors. Firstly, as I have mentioned, the respondent has completed the community service he was required to undertake. Secondly, and importantly, this is a case, it may be said, of triple jeopardy. The respondent was first in jeopardy of serving a term of immediate imprisonment when he was first sentenced by her Honour. He avoided this when the suspended sentence was imposed. He was again placed in similar jeopardy when he was re-sentenced to perform 100 hours of community service. By this appeal he was, for the third time, placed in jeopardy of serving a term of immediate imprisonment.

17 In all the circumstances, I think that it would be unjust to interfere with the sentence imposed by the learned sentencing Judge. I would dismiss the appeal.

18 ANDERSON J: I agree that this appeal should be dismissed, for the reasons given by Ipp J, to which I would wish to add only the following few comments.

19 The respondent was convicted of two offences, one of conspiring to defeat the course of justice and the other of interfering with a dead human body. The former offence is created by s 135 of the Criminal Code which is in ch XVI entitled "Offences relating to the administration of justice" and is in the following terms:

"Any person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years."

20 It is that offence with which this appeal is mainly concerned because it is that offence which the Crown contends ought to have been punished by an immediate term of imprisonment.

21 In brief summary, the facts are that the deceased had died during the night in the respondent's bedroom after they had had a night out together during which the deceased had injected himself with heroin. For the reasons detailed by Ipp J, the respondent was most anxious that the deceased's body not be found in the respondent's house and he persuaded his brother to help him shift the body. They put the body in the deceased's car and drove it to a carpark some distance away, where they left it. The respondent and his brother also agreed to pretend to anyone who might inquire about the deceased's whereabouts that the deceased had left the house the night before and that they had not seen him since. That is the story they told police and the deceased's brother.

22 Before doing the things charged in the indictment, the respondent had not committed any crime. It is not suggested that anyone else had committed any offence in relation to the deceased's death. The object of the conspiracy was not to conceal any crime or to destroy or conceal evidence that a crime had been committed. What the respondent was trying to do was distance himself from the affair for fear that the parole authorities might take the view that his involvement with the deceased breached the conditions of his parole. Whether it did or whether it did not was never gone into.

23 In these circumstances, I must say that it is a little surprising that the elements of the offence of conspiring to obstruct, prevent, pervert or defeat the course of justice are taken to have been present. This is not directly a question for this Court. As long as the indictment discloses an offence known to the law, the respondent must stand by his plea of guilty and it must be found that he committed the offence. However, it may have some bearing upon penalty, which is very much a matter for this Court.

24 The indictment which came before the sentencing court was in these terms:

"(1) Between 13 April 1998 and 14 May 1998 at Perth, Maxwell Stephen Wiltshire and Timothy Keith Wiltshire conspired together to pervert the course of justice upon the prosecution of Maxwell Stephen Wiltshire and Timothy Keith Wiltshire for offences arising from the circumstances of the death of Paul Graeme Dowding."

25 There are no particulars as to what these two accused had conspired to do which, if done, would have the effect of perverting the course of justice. It is plainly a case in which particulars of the charge ought to have been given. The reference in the count to "the prosecution of (the respondent and his brother) for offences arising from the circumstances of the death ... " is puzzling, to say the least. It was no part of the Crown case that the object of the conspiracy was to avoid prosecution or to conceal or destroy evidence of a crime or that the conspiracy actually had that effect.

26 The essence of the Crown case was explained to the learned sentencing Judge by prosecuting counsel in the following terms (AB 6):

"Because of the deception of the offenders, the police were deprived of a proper opportunity to investigate the death of Mr Dowding. The body was not found for two days and it was away from the scene of the death when found ... therefore, any ability police may have had to connect Mr Dowding's death with any person was lost."

27 The implication in that statement to the Court is that an agreement to engage in conduct that may have the effect of hindering police investigations is a conspiracy to pervert or obstruct the course of justice, even if no crime has been committed and even if the object of the conspirators was not to conceal a crime, or the identity of the perpetrators of a crime, or to destroy evidence or anything like that.

28 For the purposes of the Crown appeal against sentence, we must, of course, accept the correctness of that proposition, but I do so without any enthusiasm. Whilst it is not in doubt that conspiring to give false information to the police and conspiring to hinder or obstruct the police in their inquiries into the commission of a crime may constitute the offence charged in this case, as to which see R v Sharpe and Stringer [1937] 27 Cr App R 122 and R v Field, Field and Wheater [1965] 1 QB 402, not every case of hindering or misleading police officers in the course of their duty will constitute such an offence. As Lord Simon said in Reg v Withers [1975] AC 842 at 867:

"But I must not be taken to be saying that all conduct which misleads or wastes the time of police or tends to cause disaffection towards them is so indictable. To be punishable as conduct tending to pervert the course of justice the conduct must be such as can be properly and seriously so described. 'Pervert' is a strong word ... "

29 The point is that in all of the cases of which I am aware in which the crime was constituted by conspiring to give false statements or conceal or destroy evidence, a crime had been committed and the object of the conspiracy was to hinder, obstruct or defeat the course of public justice in respect to the bringing to book of those responsible. As Lawton J said in the Great Train Robbery case, Reg v Field, Field and Wheater (supra) at 422 - 423:

"There are, of course, cases (and this is one of them) in which, by obstructing the police in the execution of their duty, the conspirators seek to attain their object of obstructing the course of public justice but in such cases the obstruction of the police is a means to an end, not an end in itself."

30 In that case, the defendants had conspired to conceal the identity of a person who had agreed to buy a farmhouse used by the robbers as their lair. The defendants gave false statements to the police, who were on the trail of the robbers, the object being to obstruct the police in their efforts to bring the robbers to justice in respect of a crime which undoubtedly had been committed.

31 The conspirators had no such objective in this case. It was not the Crown case that a crime had been committed. As Ipp J has observed, the autopsy showed the deceased had died of a drug overdose and there is not the slightest evidence that it was other than self-inflicted.

32 It is this which, in my opinion, makes the case very unusual. It is the feature which distinguishes the case from the cases relied upon by the Crown for the submission that the offence must invariably attract a sentence of immediate imprisonment because, like perjury, the offence "strikes at the very heart of the criminal justice system". In my opinion, the fact that neither the object nor the effect of this conspiracy was to prevent the detection of crime or the identification and apprehension of the perpetrators of a crime nor, in any way, to interfere with the process of adjudication, or otherwise interfere with the administration of justice in the courts, or with proceedings pending in a court, makes it an exceptional case and takes it out of the category of cases in which a custodial sentence is imperative.

33 When there is added to this the other mitigatory features identified by Ipp J, especially the fact that the respondent has now been thrice placed in jeopardy of losing his freedom, the appeal ought to be dismissed.

34 This is not to condone, in any way, what the respondent did. It was plainly his duty to immediately report the death of the deceased to the authorities and to refrain from touching anything of relevance at the scene and it was plainly his duty to give the authorities every co-operation and assistance. His conduct in moving the body was criminal and his conduct as a whole was reprehensible and, no doubt, it was also deeply offensive to the feelings of the family of the deceased. However, I am not persuaded that, in all the circumstances, this Court should now interfere with the penalty imposed.

35 STEYTLER J: I have had the advantage of reading the reasons for decision of Ipp J. I agree with them and with his Honour's conclusions. I have nothing to add.