Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Bail pending appeal - Delay - Prospect of success on appeal - Whether "exceptional reasons" why appellants should not be kept in custody pending appeal - Whether relevant period that to hearing of appeal or to determination of appeal

Bail Act 1982 (WA), Sch 1, Pt C, cl 4

Application for expedition of hearing dismissed in each case

Jeffery v The Queen, unreported; CCA SCt of WA; Library No 920357; 3 June 1992

Jones v The State of Western Australia [2006] WASCA 79

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Swain [1999] WASCA 22

Rauhina v The Queen [2002] WASCA 91

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303

United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165

Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992

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

Duong v The State of Western Australia [2005] WASCA 148

Goulding v The Queen (1991) 56 A Crim R 75

Higgins v The Queen, unreported; CCA SCt of WA; Library No 8382; 25 July 1990

Hull v The State of Western Australia [2005] WASCA 107

Stalker v The Queen [2002] WASCA 364

Toase v The Queen, unreported; CCA SCt of WA; Library No 929292; 9 April 1992

1 ROBERTS-SMITH JA: The two appellants were convicted in the District Court at Broome on 15 May 2006 of attempting to pervert the course of justice, contrary to s 143 of the Criminal Code (WA). Each was sentenced to 15 months' immediate imprisonment, with an order that he be eligible for parole. Each has appealed against sentence.

"1. The learned sentencing Judge erred in law, or alternatively in the exercise of his discretion, by imposing a sentence that was manifestly excessive when proper regard is had to all the circumstances of the offence and to all the circumstances of the appellant.

PARTICULARS

(a) The learned sentencing Judge erred by failing to give sufficient weight to the antecedents of the Appellant.

(b) The learned sentencing Judge erred by giving excessive weight to general deterrence.

2. The learned sentencing Judge erred in law, or alternatively in the exercise of his discretion by not properly considering whether to suspend the sentence and failing to suspend the sentence."

3 Those are grounds 1 and 3 in Bassan's appeal. Bassan has an additional ground (ground 2) which is:

"The Learned Sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence on the Appellant which had an unjustified parity to the sentence imposed on the co-offender thus failing to reflect the respective lower level of culpability of the Appellant in comparison to the culpability of the co-offender."

4 On 20 June 2006 each appellant filed two applications. The first was an application that the hearing of the appeal be expedited. The second was an application for bail pending appeal. Each application is supported by a separate affidavit by the appellant's solicitor, Mr Michael Tudori. Each affidavit is in similar terms in respect of each appellant. The central proposition to which Mr Tudori deposes is that given in each instance that the appellant will be required to serve 71/2 months' imprisonment (that being the custodial part of the 15 month term imposed), that period will likely to have been substantially served before the determination of the appeal. He states that each appellant makes application for bail on the basis that the exceptional reason for granting bail is that the sentence will have been completed at the time the appeal is determined.

5 Each Appellant's Case was filed on 6 June 2006. On 9 June 2006 I granted leave to appeal on each of the grounds. That was on the basis I was satisfied pursuant to s 27 of the Criminal Appeals Act 2004 that there was a reasonable prospect of each of the grounds succeeding on appeal (see Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [51] - [59]).

6 The applications for expedition of the hearing of the appeal are now otiose. The Registrar issued a notice on 21 June 2006 advising that the appeals would be listed for hearing before the Court of Appeal on 26 July 2006. Mr McGrath, who appeared as counsel for both appellants on these applications, informed me that in light of the fixing of the hearing date, the appellants do not press the application for expedition. That application will accordingly be dismissed.

7 Subject to one point, there is no dispute about the principles which apply to an application for bail pending appeal. The relevant statutory provision is Sch 1, Pt C, cl 4 of the Bail Act 1982 (WA) which relevantly provides that in deciding whether or not to grant bail to an appellant who is in custody awaiting the disposal of appeal proceedings, the Judge shall first consider whether there are exceptional reasons why he or she should not be kept in custody and shall only grant bail if satisfied there are such exceptional reasons and bail may properly be granted having regard to the provisions of cl 1 and cl 3 of Sch 1. Those last two clauses set out the ordinary principles applicable to a grant of bail.

8 "Exceptional" reasons are those which are unusual or out of the ordinary or in some way special or an exception to the general run of cases (per Murray J, with whom Templeman J agreed in Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303 (at [15]).

9 As Murray J said in Tieleman, what may constitute exceptional reasons will depend upon the facts of the particular case. Nonetheless, it would generally be difficult to find exceptional reasons where there are not strong grounds for concluding that the appeal would be allowed, nor where the custodial portion of the sentence would be substantially served before the appeal is heard. Even then, it may be necessary to demonstrate additional circumstances in a particular case before the court would exercise its discretion to grant bail on the basis it is satisfied exceptional reasons, justifying a grant, exist (per Murray J ibid at [24]).

10 Insofar as the prospects of success on appeal are relied upon, what must be shown is that the appeal is "most likely to succeed" (Murray J ibid at [31]); Steytler J at [51]).

11 Counsel for the appellants maintains that when considering the portion of the sentence which will be served, the relevant time is the "determination" of the appeal. He bases that submission on the following passage from the judgment of Gleeson CJ, McHugh and Gummow JJ in United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 at [41] where their Honours said:

"The history of decisions of this Court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed ... Secondly, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined." (My emphasis)

12 That passage was quoted by Murray J in Tieleman, following which his Honour made observations about what may constitute exceptional reasons and made the comment (at [24]) that:

"... nor would it generally be possible to demonstrate exceptional reasons in a case where it could not be shown that the custodial sentence will be substantially served before the appeal is finally determined."

13 The passage from Cabal was obiter and I do not read their Honours as intending to be in any way definitive by their use of the word "determined". Murray J appears to have taken a similar view, as appears from what his Honour said at [10] - [11] and [44] in Tieleman:

"10 It is to be borne in mind that bail is granted to enable a defendant (as that term is defined by the Act) to be released from custody and to remain at large until required to appear in court and to then surrender from bail and again go into the custody of the court. Roberts-Smith J was exercising jurisdiction under the Act, Sch 1, Pt A, cl 4(d). He was considering the grant of bail pending an appearance in the Court of Criminal Appeal in connection with the appellants' applications for leave to appeal against their convictions and sentences.

11 It was not then the case, but it can now be seen that if his Honour had granted bail, it would, on notice to the appellants, have been for their appearance before the Court of Criminal Appeal on 1 December. It would thereafter fall to the Court of Criminal Appeal to consider any application to renew bail pending the final determination of their appeals which the appellants might make. It is important to bear that in mind when one is considering arguments concerned with the possibility that the Court of Criminal Appeal might reserve its judgment on the applications before it and that, therefore, if then denied bail, the appellants would be required to continue, at least until the final decisions upon their applications for leave, to serve the sentences imposed upon them by McKechnie J.

44 Finally, in relation to the prospect that a substantial portion of the sentences might be served before the final decision of the Court of Criminal Appeal is known, his Honour, in my opinion, approached that correctly. Of itself, such a consideration will generally not be regarded as providing an exceptional reason for the grant of bail and the point rather falls away now that it is known when the appeals are to be heard. If the decision on those appeals is reserved it will, in my view, be open then to the appellants to make a new application for bail for their appearance to receive the final judgment of the Court of Criminal Appeal, if leave should be granted to them to appear before the Court on that occasion under the Criminal Code (WA), s 699(1)." (Emphasis added)

14 In the same case, when explaining the approach which it had been necessary for the primary Judge to take, Steytler J (as his Honour then was) referred to the proportion of the sentence imposed which would probably have been served "by the time of the hearing of the appeal" (ibid [51]).

15 There is nothing in cl 4 of Sch 1, Pt C of the Bail Act which indicates a conclusion one way or the other. Although that clause speaks of a person "... awaiting the disposal of appeal proceedings" that simply describes the circumstances in which a bail application may be made; it does no more than describe the applicant as one who is seeking bail pending the outcome of their appeal and extends the statutory authority of the court to grant bail, out to the final determination of the appeal. In exercising that discretion at a time prior to the hearing of the appeal, it seems to me the facts that the applicant will be in the custody (or at least subject to the direction) of the Court of Appeal at the hearing of the appeal, that the court will have jurisdiction to grant or refuse bail at that stage, that the court will then have a much better sense of how long it may be before its decision is handed down and, most importantly, having heard full argument on the appeal, will be much better placed to assess the likely prospect of the appeal succeeding and what outcome may follow, all militate in favour of the conclusion that prior to that point, the relevant period to be looked at in terms of delay, is that from the hearing of the application to the hearing of the appeal.

16 The submissions advanced here are that the appeal against sentence in each instance is most likely to succeed and to result in either a shortened term of immediate imprisonment or the substitution of a suspended sentence, which prospect, combined with the period of time which each appellant would have to serve before the determination of his appeal would render such a positive outcome nugatory. That would be so, it is said, because each appellant would have served a substantial portion of his sentence, particularly the custodial portion of it.

17 I have already indicated it to be my view that the relevant time is the hearing of the appeal for the reasons given above. When I raised that possibility in the course of the hearing, Mr McGrath put the alternative submission that even on that basis the period of time served by the appellants would be substantial, as a proportion of the overall term, or period before eligibility for parole, respectively, such that were their appeals to succeed, their contingent incarceration even to the date of hearing would be unjust.

18 It is convenient to consider the time factor first.

19 The hearing has been listed now for 26 July 2006. By that date each appellant will have served some 21/2 months of the 15 month head sentence, and of the 71/2 months minimum sentence - that is, would still have 5 months to serve of the minimum custodial term before they would be eligible for release on parole.

20 The avoidance of 121/2 months' imprisonment, were the full term otherwise have had to be served, or of a further 5 months' imprisonment on the assumption (not necessarily true) that the appellants would be released as soon as eligible for parole, does not seem to me to be a nugatory outcome.

21 Even so, if the prospect of success were virtually certain, then any continued incarceration would be unjust. On the other hand, the further back from certainty the assessment of the prospect of success may go, the less would be any reasonable apprehension of an injustice of that kind.

22 The fact that leave to appeal has been granted is not indicative of anything more than that the appeal has a reasonable prospect of succeeding. A significantly higher prospect of success must be shown before that could constitute an "exceptional reason" either alone or in combination with any other factor. Otherwise, every appellant who was granted leave to appeal would have an entitlement to bail - and that is patently not the statutory intent (see Jones v The State of Western Australia [2006] WASCA 79 at [10] - [17]). I turn to consider the prospects of success.

23 Each appellant pleaded guilty before Groves DCJ on 15 May 2006 in the District Court at Broome. The facts as outlined by the prosecution were as follows.

24 In December 2004, Ranford received two speeding tickets. On 11 December 2004, he was detected speeding on West Coast Highway, City Beach. About 2.43 pm on 12 December he was caught by a multinova speed camera exceeding the speed limit in a Honda Prelude motor car on Old Coast Road, Australind. He was subsequently informed by Broome police that an infringement notice No. V12647913 had been issued and that the penalty included a loss of four demerit points. The loss of those demerit points would have affected his extraordinary driver's licence at the time.

25 On 6 July 2005, Ranford contacted Bassan and asked him to accept responsibility for the infringement and for the demerit point loss. Ranford told Bassan that he would pay him the monetary penalty of the infringement together with another $1000 for him personally, for accepting the loss of the demerit points. Bassan agreed to that and they arranged to get together later to work out the story.

26 Ranford contacted Bassan again the same day and asked him to provide Ranford with his driver's licence details so that Ranford could write a letter stating that Bassan was the driver.

27 As it happened, these conversations were captured by detectives because Ranford's mobile telephone was being intercepted by police for unrelated reasons.

28 On 8 July 2005 detectives executed a search warrant at Ranford's residence in relation to other matters. During the search they found a handwritten letter by Ranford stating that Bassan was the driver of the Prelude on the Old Coast Road, Australind on 12 December 2004. The detectives took a photograph of the letter.

29 Ranford in fact never sent the letter and he paid the fine for the infringement himself. It was, accordingly, not the subject of any charge.

30 However, on 12 August 2005, Bassan signed a statutory declaration stating that he was the driver of the same vehicle in relation to the traffic infringement on 11 December 2004 at West Coast Highway. Ranford did present that statutory declaration signed by Bassan, to the Broome police. On 23 August 2005, Ranford was interviewed on video by detectives about that. Bassan declined to be interviewed. Both men were arrested and charged.

31 Both appellants were represented by Mr Tudori before Groves DCJ. Counsel told the Judge that Ranford was a 37-year-old single man living in Broome. He owns his own business which is a limousine service operating in Broome. He purchased that for $10,000 and then purchased a vehicle to go with it for another $50,000. As at May 2006 he had savings of approximately $50,000. He had been living in Broome for seven years, having originally travelled there to work in the pearling industry. He suffers from a rare bone disease and that ultimately prevented him working as a diver or in any other part of the pearling industry, but because he enjoyed Broome, he decided to stay and so ultimately purchased the limousine business. He found it difficult to break into the tourist trade and that difficulty was all the more so because as with most tourist ventures in Broome, it is very seasonal.

32 The appellants met when they first moved to Broome and formed a very close relationship thereafter. They both shared a vehicle for use in Perth when they were in the city. That is the vehicle the subject of the infringements.

33 It was put to his Honour that when Ranford received the infringement notice in respect of the City Beach offence, he panicked because he was finding his business difficult and he was under some pressure with the repayments of the loan he had taken to purchase the vehicle. He was operating on an extraordinary driver's licence and was fearful of losing that because it would mean he would lose everything that he set up for his livelihood. That was why he asked Bassan to take the points.

34 Counsel told his Honour that Bassan was 31 years of age. He is a concreter and was then currently working as a machine operator in the concrete business in the south-west, having moved from Broome. He was earning approximately $36,000 per annum. He had moved to Broome in 1997 for concreting work and soon after that was given the opportunity to run the operation in Broome. He left that to start his own concreting business. That was about the time Ranford was beginning his own limousine business.

35 According to counsel, Bassan would have helped Ranford as requested anyway, without any payment. In fact, although Ranford offered to pay him $1000, Bassan never received that. He said what he did was out of loyalty to his friend Ranford because he knew that Ranford's livelihood was dependent upon the limousine. I note that the statutory declaration was signed on 12 August and the appellants were arrested on 23 August 2005.

36 It was submitted by counsel on behalf of both appellants that they did not appreciate the seriousness of their actions. His Honour understandably had some difficulty accepting that submission.

37 Ultimately, Ranford did lose his extraordinary driver's licence because of the loss of points and Bassan, when he was able, assisted him by driving the limousine on top of his long hours as a concreter, "... just out of loyalty and their bond as friends".

38 Counsel emphasised that both appellants had pleaded guilty at a very early stage and were remorseful. He submitted that there were (realistically) three options for consideration by his Honour, they being the imposition of substantial fines, or suspended imprisonment, or an immediate term of imprisonment.

39 The State prosecutor, in his submissions, pointed out that the maximum penalty under the Criminal Code is 7 years and that offences of this type are to be taken seriously because of the effect this type of offending has on the administration of justice. He then added (t/s 14):

"I would agree with my learned friend in the sense that I have been involved in cases such as this which have been dealt with by way of large fines and I have seen cases dealt with by way of suspended imprisonment and also by immediate terms of imprisonment."

40 He drew attention to the fact that although Bassan did not have much of a police record, Ranford had an extensive traffic record, particularly for driving without a licence. He conceded that neither appellant had any convictions for anything similar to the present offence.

41 In sentencing, the Judge observed that the seriousness of the offence is indicated by the maximum penalty prescribed by Parliament which is one of imprisonment for 7 years. He took the facts to be as outlined by the State prosecutor, as none of them had been disputed. He then recounted the personal circumstances and antecedents of the appellants.

42 As to Ranford, he noted that Ranford did have a prior record of offending relating mainly to motor vehicle or driving-related offences and the circumstances of the instant offence were quite apparent against that background. As his Honour observed, a number of Ranford's previous convictions related to driving without a motor driver's licence or contravening the terms of an extraordinary licence, so he was well aware of what the consequences would be of being detected speeding by the multinova camera, particularly on his extraordinary motor driver's licence. In that regard his Honour noted that in 2000, Ranford had been convicted of having no motor driver's licence and driving under suspension, in respect of which he was sentenced to 6 months' imprisonment suspended for 24 months.

43 He noted the submission in respect of Bassan that he had assisted Ranford out of loyalty. He then said (t/s 17):

"It appears to me that you, Mr Ranford, were the instigator so far as this offending is concerned and, of course, it was you who would benefit by proceeding down the path which you put to Mr Bassan.

Similarly, you, Mr Bassan, agreed to assist. It was held out to you that there would be a monetary reward. I accept your counsel says that you never received anything for what you did and perhaps not surprisingly when it all came to light. You nevertheless were complicit in that you signed the statutory declaration. It's apparent from the statutory declaration that it is a serious document and it was signed well knowing that you made the declaration by virtue of section 106 of the Evidence Act of Western Australia 1906. That of itself is a serious matter.

You then, Mr Ranford, took the signed statutory declaration to police and handed it or submitted it to be police in the hope that you would avoid the four demerit point penalty which goes with the speeding offence. All in all, there was a concerted effort to deceive the law. There was dishonesty, there was deception and clearly that must be punished.

It has often been said in cases of this nature by the Court of Criminal Appeal of Western Australia that this type of offending strikes at the heart of the administration of justice. It has been said also that it will only be in exceptional cases that a custodial sentence, ie, a prison sentence is not imposed. This offending was deliberately planned and executed. You were both complicit to a similar degree and I don't differentiate between either of you so far as your involvement in this offending is concerned. As Mr Smith acknowledged, there are perhaps different levels of offending for this type of offence. In the circumstances of this offending, this is clearly a serious instance of attempting to pervert the course of justice."

44 His Honour went on to say that it was no answer for Ranford to say that he did not know the offending was as serious as in fact it was, His Honour opined that provided only an indication of an explanation as to why he did it and thought that he could get away with it, but provided no excuse whatsoever. His Honour described the offence as a "blatant attempt to pervert the course of justice and for you, Mr Ranford, to avoid a penalty which would otherwise have been brought upon you in respect to [sic] the speeding offence".

45 His Honour went on to say that this type of offending clearly required deterrence, not necessarily personal, because he thought now the offenders had an appreciation of the seriousness of the offence, it is unlikely they would offend in this way again in the future. Rather, general deterrence must be reflected by the sentence to be imposed, as a warning to others who might be like-minded in similar circumstances to offend in this way in the future. His Honour said that the message must be conveyed to the community that the courts simply cannot and will not condone this type of offending and that it will be reflected by condign or severe punishment appropriate to the circumstances of the particular case.

46 The Judge acknowledged that each offender had entered pleas of guilty at an early stage and said they were entitled to credit for that as a mitigating factor and that likewise neither had a prior record for this type of offending in the past.

47 Referring to the three options put forward by counsel, his Honour said that given the circumstances of the offending it would be totally inappropriate to impose a fine no matter how substantial that might be. Although community orders had not been mentioned, they would not be appropriate. That left only the option of imprisonment and his Honour concluded that only a sentence of imprisonment was appropriate having regard to the seriousness of the offending. The question then became whether he should suspend it or whether it should be a sentence to be immediately served.

48 His Honour had regard again to the matters personal to each of the appellants. He noted they were not youthful any more, both being in their thirties, and that both were involved in businesses.

"Rehabilitation is but one aspect to be considered when it comes down to a suspended sentence. As I said, I don't doubt that you won't offend in this way in the future, so to that extent rehabilitation is really not a consideration.

In all of the circumstances, I am unable to find any reason or circumstance which would warrant my suspending a sentence of imprisonment. The offence is so serious, as I said, that it strikes at the heart of the administration of justice. There is strong need for the court to reflect the seriousness of the offending by imposing a sentence of imprisonment to be immediately served."

50 The Judge referred to the requirement by the amendments to the Sentencing Act, to reduce what might otherwise have been an appropriate sentence prior to those amendments, by one-third, which he did. He said he also gave credit for the pleas of guilty and in light of the appellant's previous history had no hesitation in making an order that each be eligible for parole. He then imposed upon each of them a sentence of 15 months' immediate imprisonment.

51 In his submissions before me, Mr McGrath acknowledged that Ranford orchestrated the offence by requesting Bassan to sign the statutory declaration and then by presenting it to the Broome police station. He said that due to arrest, the matter never proceeded to the point there was an actual recording of those details officially, or to court, in respect of the wrong information. He drew attention to the comment by the State prosecutor before the sentencing Judge that cases such as this have been dealt with by way of large fines, suspended sentences and also by immediate terms of imprisonment. In regard to that, Mr Fiannaca SC for the respondent, argued that was in no way a concession, as was apparent from what the prosecutor said immediately afterwards at (t/s 15):

"Not every case is the same, I suppose, and there are some aspects of this case which are perhaps more serious than some of the other cases. It seems to me that getting someone to fill out and sign a false statutory declaration and then presenting that to the police is quite a serious way of committing this offence."

52 The respondent's submission about the comment made by the State prosecutor is obviously correct.

53 It is as well that I remind myself at this point that on these applications it is it not for me to determine the grounds of appeal. That will be for the Court of Appeal following full argument. My role at this stage is simply to make an assessment of the prospects of the appeal succeeding in each instance. That exercise is to be conducted having regard to the reasons given by the sentencing Judge and by the submissions advanced with respect to the grounds of appeal by the appellants and the respondent and to the material before his Honour.

54 In relation to ground 1, it is submitted inadequate weight was given to "the excellent antecedents" of the appellants. Counsel submitted that his Honour correctly recognised there was effectively no real criminal record and that in respect of Ranford, his record related mainly to motor vehicle driving offences and the same applied with respect to Bassan.

55 It is submitted that an identifiable error made by his Honour was his finding that this was clearly a serious instance of attempting to pervert the course of justice. The submission there is that, within the genre of the type of offence of attempting to pervert the course of justice, this was not one of the most serious (albeit it was serious) examples. Counsel puts that perverting the course of justice can be said to be a serious offence but to classify this type of offending as being in the serious class of that category was an error. Reference is made to a number of other cases such as Rauhina v The Queen [2002] WASCA 91; R v Swain [1999] WASCA 22; Jeffery v The Queen, unreported; CCA SCt of WA; Library No 920357; 3 June 1992; and Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992.

56 A complementary submission advanced on behalf of the appellants (in support of both grounds 1, and 2 of Ranford's appeal and ground 3 of Bassan's) concerns what his Honour said about rehabilitation. It is put that his Honour recognised personal deterrence was not a significant consideration for these appellants. The first way in which that is said not to be reflected in the sentences is that a term of 15 months immediate imprisonment is disproportionate to that in combination with the circumstances of the offence and the "excellent antecedents" of the appellants and their plea of guilty.

57 I note that a sentence of 15 months' imprisonment, after the statutory one-third reduction, equates to a pre-31 August 2003 sentence of just over 1 year 10 months.

58 The second limb of this point, going to the question of suspended sentence, was that his Honour made another serious error when he said that rehabilitation is but one aspect to be considered in respect of a suspended sentence and then went on to say that he did not doubt the appellants would not offend this way in the future "... so to that extent rehabilitation is really not a consideration". The submission is that in those circumstances, rehabilitation was an important consideration which his Honour effectively excluded, or alternatively, used to exclude the imposition of a suspended sentence.

59 So far as the other authorities upon which the appellants rely are concerned, the argument generally advanced in respect of them is that terms of imprisonment for 12 months or more are generally seen to be apt in circumstances in which the offending continues over some period, such as in Swain (where the offender used a false licence to register and transfer three vehicles over a five year period, as well as to produce to police on a number of occasions when he was stopped by them, and in relation to infringement notices, thus avoiding a conviction). Swain was charged with attempting to pervert the course of justice by use of another person's driving licence whilst he was suspended from holding a driving licence for life. The Crown submitted there that the offending was at the higher end of the scale. Swain was sentenced to 18 months' imprisonment, suspended for 2 years, which was reduced to 15 months' imprisonment on appeal but ordered to be served immediately. The reduction in the term was made because it was a Crown appeal and because the respondent had already served part of the suspended sentence.

60 In Jeffery, a sentence of 18 months' imprisonment on one count of attempting to pervert the course of justice was reduced to one of 12 months' imprisonment on appeal. The 30-year-old offender had provided a false name to police and significantly, entered into a false bail recognisance and failed to appear in court with the result that a warrant was issued in the false name. He permitted the deception to continue for two years and three months. Malcolm CJ (with whom Pidgeon and Owen JJ agreed) reiterated his earlier expressed view that such offences are sufficiently serious, in that they strike at the heart of the administration of justice, as not ordinarily to be disposed of by the exercise of a non-custodial option such as the payment of a small fine - although his Honour said he would not exclude a period of probation coupled with a community service order "in an appropriate case, particularly of a youthful first offender". Having reviewed a number of authorities, his Honour concluded that they did not suggest any particular "tariff" for such offences and that allowance must be made for variations in the circumstances of individual cases. In that case, the sentence was held to be manifestly excessive because the applicant was not given sufficient credit for his cooperation with police once apprehended, the fact that he pleaded guilty at the first opportunity and the fact it was not a case where the deception was persisted to the point where the court was deceived.

61 Wright was a case in which there were very particular features going to mitigation. The applicant had been sentenced to a total term of 18 months' immediate imprisonment on two offences of attempting to pervert the course of justice. The aggregate term was reduced on appeal to 12 months' imprisonment. The applicant had been detected shoplifting and gave a false name and address. She produced a driver's licence to support that. She had previously stolen the licence from a friend. She subsequently took part in a police interview under that name and later attended a police station and received a summons in the same name. She eventually attended court, pleaded guilty to stealing and was fined in that name. The second count arose out of a speeding offence. When stopped by police she gave a (different) false name. A traffic infringement notice was subsequently issued in that name. When interviewed by detectives about the use of the false names, she told them that she did not use her own name on the first occasion because she had a previous record and did not use it on the second, because she did not hold a current motor driver's licence.

62 The applicant was 32-years-old. She was the mother of a 12-year-old child from her first marriage and two children aged 7 and 8 from her second. At the time of sentencing she had been separated for three years from her second husband. After the commission of these offences the applicant's husband had moved back into the house and taken control of the 7 and 8-year-old children. The applicant had moved into another house with her 12-year-old daughter. She was supporting that child and herself by way of a supporting parent's benefit. Following her imprisonment, the applicant's 12-year-old daughter was living with the applicant's mother, who was 64 years of age and not coping well. The child had also been seriously affected and was seeing a counsellor and undergoing psychiatric counselling.

63 Wallwork J (Pidgeon and White JJ agreeing) discussed a number of authorities concerning the sentencing of single mothers with responsibility for young children. The effect of the applicant's imprisonment on the young child was a significant factor in his Honour reaching the conclusion that the aggregate term was too severe. There were also other substantial mitigating circumstances. That case must be seen as exceptional and is clearly distinguishable from the present.

64 Generally, the submission here is that his Honour gave excessive weight to the requirement for general deterrence and insufficient weight to the "excellent antecedents" of each appellant. Accepting the principle that general deterrence must carry significant weight in respect of offences of attempting to pervert the course of justice, it does not follow that inevitably that principle must be given primacy in every case. It is submitted on behalf of the appellants that in this case there was a greater public interest in giving proper weight to the principles of condemnation and rehabilitation. The circumstances of the offending did not involve the completion of false bail recognisances, nor did the deception continue for an extended period and nor did it extend to deceiving the courts or result in falsification of the official records of the State. Thus, it is submitted, the sentence, considered in light of previous cases and the factual circumstances of the offending, reveals the imposition of a sentence which is manifestly excessive.

65 As to the additional ground in relation to Bassan ("disparity in sentencing"), the submission is predicated upon the proposition that where there are relevant differences between offenders, they should be recognised by discrimination in sentencing (Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 338). It is contended that there was a relevant difference between Bassan and Ranford, signalling a lower level of culpability on Bassan's part, and that distinction was not recognised by the sentence imposed upon him.

66 The relevant difference is said to be that Ranford was the instigator of the offending and was the only person to benefit, by avoiding the recording of the speeding fine against his name, that Bassan never received anything for his participation and that his involvement was limited to his agreement and his signing the statutory declaration. These different roles were recognised by the sentencing Judge - it is submitted, correctly - but his Honour subsequently said both were complicit to a similar degree and he would not differentiate between them so far as their involvement in the offending was concerned. That was said to be an error which led to unjustified parity in the sentences imposed upon the two appellants.

67 On the point of the appellant's police record, particularly that of Ranford, Mr Fianacca SC submits one could hardly regard them as either "outstanding" or "excellent". Ranford has a long record of traffic offences, including driving without a licence and breaching an extraordinary licence. He notes that the sentencing Judge specifically referred to the imposition of a suspended term of 6 months' imprisonment for driving whilst under suspension. He submits that these matters cannot be said to be of no consequence when the offender is being sentenced for an attempt to pervert the course of justice arising out of traffic offending. Neither in respect of the term of any sentence of imprisonment nor on the question of whether imprisonment should be suspended, should the prima facie view be taken that the sentencing Judge erred by failing to give sufficient weight to the "excellent" antecedents of the appellants. Even in Bassan's case, although there is no conviction for an offence of this sort, he does have criminal convictions which are mainly drug-related and which cannot simply be dismissed as being of no significance. The records of both appellants, in the respondent's submission, indicate that they have both been in trouble with the law in the past and ought to have known very well the potential consequences of the conduct in which they were engaging. As to the appellants' submission that his Honour erred in regarding the offence as serious, the respondent contend his Honour was correct to take that view. The offence involved the signing of a false statutory declaration and was the result of these two offenders working together in the planning and execution of the deception.

68 So far as the appellant Bassan submits he played a lesser role which should have been reflected in a less severe sentence, the respondent's submission is that again no error has prima facie been demonstrated. This was a case in which, if it were not for the assistance of Bassan, Ranford would not have been able to effect the deception upon the authorities. He needed another person to assist him and Bassan was only too willing to assist. Indeed, it is submitted that far from being a matter of mitigation, the proposition that Bassan was prepared to do this so readily out of loyalty, involving as it did such a serious breach of the law, added to the seriousness of his role. The submission is, that although they played different parts, they were equally culpable.

69 It is inappropriate on these applications that I deal with the grounds of appeal in detail.

70 There is clearly significant force in the respondents' submission that neither appellants' antecedents could properly be described as "excellent". Indeed, Ranford's record of driving offences is highly pertinent to the offence he committed and arguably puts it in a serious category.

71 It is arguable that his Honour erred in regarding the offence as a serious example of offences of attempting to pervert the course of justice. On the other hand, unlike Jeffery, it was not a spontaneous falsity made while drunk and subsequently only persisted in, but was a deliberate, premeditated plan by Ranford to avoid the loss of his extraordinary driver's licence and he procured another person to join his deception and sign a false statutory declaration to give effect to it. On any view that is serious criminal conduct. So too, whilst for Bassan it can be argued he played a lesser role, he well appreciated what he was being asked to do, he did it willingly and he was prepared to enter into the deception, sign a false statutory declaration and presumably follow it through, simply out of supposed loyalty to his friend. There is a strong argument that in respect of each appellant this was a serious offence of the kind - although not as serious as some others.

72 The appellants' submission to the effect that his Honour either disregarded rehabilitation as a factor, or used it to exclude the imposition of a suspended sentence, is not one which the Court of Appeal might readily accept. The Court might take the view his Honour expressly considered rehabilitation, recognising that neither appellant was likely to offend in this way again, but considering the principles of general deterrence, denunciation and punishment had to be given primacy, and that such an approach by his Honour was open to him.

73 A submission that a sentence of 12 months or more is ordinarily imposed in respect of offences of this kind which display very much more serious features (such as long term deception, misleading courts and the like) is well arguable, but the prospect of it being successful cannot be said to have that degree of likelihood of which the authorities on "exceptional reasons" speak.

74 In relation to Bassan's "disparity ground", there were differences in the role played by each accused. However, it cannot be (and indeed is not) said his Honour failed to appreciate those differences. He expressly referred to them. The submission that on that account Bassan should have received a lesser, or a suspended sentence, is arguable, but it would have to be shown it was not open to his Honour to regard them as equally complicit. That submission may succeed before the Court of Appeal, but it could be put no higher than that.

75 I am brought to the conclusion that although there is a reasonable prospect of the appellants succeeding on each of their grounds of appeal, it cannot properly be said their appeals are most likely to succeed. That being so, the likelihood of success on appeal is not an exceptional reason why they should not be kept in custody pending their appeals, either alone or in combination with the period which they will continue to serve in prison between now and the date of the hearing of their appeals on 26 July 2006.