REGINA v GIANG

1 STUDDERT J: I agree with McClellan J. 2 McCLELLAN J: The applicant, David Cuong Giang, seeks leave to appeal against a sentence imposed upon him by Sides DCJ. The applicant pleaded guilty to doing an act intending to pervert the course of justice contrary to s 319 of the Crimes Act. The offence carries a maximum penalty of fourteen years imprisonment. 3 The offence occurred following an incident which took place at the Mekong Club in Cabramatta on 6 March 1999. A person known as Mark Gabriel, who was working as a security guard at the Club, became involved in an altercation with another security guard. Mr Gabriel struck the other security guard with an extendable baton and was subsequently charged with malicious wounding. That charge was listed for hearing at the Burwood Local Court on 16 July 1999. 4 On that day the case was not completed and it was stood over for further hearing on 7 October 1999. During the period between the hearing dates the police received information that Mr Gabriel had recruited witnesses to give false evidence for him. In fact the applicant had agreed with Mr Gabriel that he would give false evidence to the effect that he observed Mr Gabriel to be acting in self-defence on the occasion which gave rise to the malicious wounding charge. 5 The applicant was present in court on 16 July 1999 for the purpose of giving evidence. However, as the prosecution case was not completed on that day he was not required. 6 After 16 July 1999, the police obtained evidence of the agreement between the applicant and Mr Gabriel by the use of a listening device worn by an informant. On the adjourned date, 7 October 1999, the applicant attended the court but left without giving evidence. On this occasion he was dressed in clothes described as suitable for him to give evidence. 7 On 5 January the applicant was arrested and made admissions to the police of his involvement in the matter. Sides DCJ accepted from the material obtained in the ERISP interview that Mr Gabriel had persuaded the applicant that he had a case for self-defence and that the applicant agreed to go to court to assist him in making out that case. I infer that others, apart from Mr Gabriel, also participated in persuading the applicant to give false evidence. As I have indicated the applicant did not proceed with his intention and did not give evidence. 8 The ERISP interview contains a statement by the applicant that although he had originally gone to court with the intention of giving false evidence, he changed his mind prior to 7 October 1999. He said that although he was aware that the police knew of his intention, this did not influence him in his decision. He said he was "already planning not to be a witness by that time". 9 At the sentencing hearing the police Breach Report, which included a statement of the facts, was tendered. That report indicates that on 7 October the applicant left the court before 10am. The report records that "[the applicant] further stated that after attending court on 16 July, he became aware of the serious nature of the offence and decided not to give evidence." 10 Sides DCJ did not accept this evidence which he described as self serving. He drew attention to the fact that the applicant had previously indicated an intention to go to court and give false evidence, and that on 7 October went well dressed for the occasion. He found that the applicant only changed his mind once he arrived at court on 7 October after Mr Gabriel told him that the police were aware of the plan. 11 The subjective circumstances of the appellant provide little indication, but for one matter, of any propensity for the applicant to offend. He was born in Vietnam on 3 January 1977 and is the oldest of two boys. He was twenty-two years of age at the time of the offence. He migrated to Australia with his family as a refugee in 1980. His parents separated when he was aged sixteen years and he has had only limited contact with his father who now lives in the United States of America. The applicant remains close to his mother who continues to be supportive of him. 12 The applicant left school at eighteen years of age, having obtained his Higher School Certificate. He then graduated with a Bachelor of Commerce (Management), a three year university degree course. He worked casually during his university years. Prior to his arrest he was employed as a Sales/Marketing representative, and he was undertaking further university courses to improve his position. He earns something in the order of $500 a week. 13 The applicant indicated to both the police when interviewed and the Probation officer, that he was sorry and Sides DCJ accepted that he had demonstrated some contrition. However, his Honour concluded that the plea of guilty was an acknowledgment of the strength of the Crown case which, having regard to the listening device evidence, was obviously strong. 14 The applicant has a previous conviction dating from 1995 when he was eighteen years of age. On that occasion he was convicted for stealing from a person and ordered to perform 200 hours community service. The evidence shows that this service was performed satisfactorily. 15 The applicant did not initiate the offence and did not stand to gain in any way from its commission. There was no evidence that he would gain any reward although he was to receive a modest sum to recompense him for the work that he missed by attending court. His only motive appears to have been to help out his friend. 16 Sides DCJ found that in light of the applicant's work record, the support of his mother and other matters, it was likely that the applicant had good prospects of a successful rehabilitation. 17 His Honour sentenced the applicant to a term of fifteen months imprisonment fixing a non parole period of eight months. In imposing this sentence he remarked that the offence was one which struck at the very heart of the criminal justice system and that although it was not a case near the top of the range of offences covered by the section, it was not at the very bottom. Drawing attention to the need for general deterrence, his Honour found that the imposition of a bond or a community service order would not adequately reflect the seriousness of the matter or serve to deter others. He expressed a similar view about a suspended sentence. He recorded the fact that the applicant had indicated that he did not consent to serving his sentence by way of periodic detention. 18 The applicant submits that the sentence imposed by Sides DCJ was manifestly excessive and failed to have adequate regard to the following matters:

(a) the early plea of guilty entered in the local court on the basis of s 51A of the Justice Act;

(b) the youth and academic and work qualifications of the applicant;

(c) the real potential for general rehabilitation based on the contrition shown by the plea and in the evidence generally before the District Court. It is submitted the undue weight placed upon the issue of general deterrence in the face of the apparent excellent prospects for rehabilitation, and;

(d) the fact of the applicant's one prior conviction balanced against the circumstance of an otherwise unblemished record and the fact that the present sentence constituted a first time in custody. 19 It is also submitted that given the lesser role played by the applicant in the commission of the offence compared with that of the principal offender, the sentence imposed was manifestly excessive. Attention is drawn to the available statistics which, from a limited sample, reveal that 53 per cent of the recorded cases resulted in the imposition of a non-custodial sentence. 20 An application was made before the sentencing judge for an assessment to be made as to whether the applicant was an appropriate person to serve his sentence by way of home detention. His Honour rejected this application. As I have indicated, his Honour also recorded the fact that it was indicated to him that the applicant did not consent to serving a sentence by way of periodic detention. It was submitted that before ignoring this possibility, his Honour should have inquired as to the reason why consent was not forthcoming. 21 The offence committed by the applicant is unquestionably serious. As I have already stated, it carries a maximum penalty of fourteen years imprisonment. Section 319 of the Crimes Act and other similar provisions, which have as their purpose the protection of curial proceedings, have been considered by this Court on many occasions. In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from a similar course of action. 22 In R v Purtell, [2001] NSWCCA 21, this Court considered a Crown appeal with respect to a matter where the sentencing judge, finding the charge proved, did not proceed to a conviction and imposed a good behaviour bond for a period of two years. The offender had provided a false reference to support his case on sentence for a conviction on an assault charge. 23 Before the sentencing judge the Crown had accepted that a suspended custodial sentence may be appropriate. However, this Court found that the sentencing judge had erred. Giles JA said: "The offence of perverting the course of justice carries a maximum sentence of imprisonment for fourteen years. This recognises the importance of protecting the integrity of the criminal justice system, and the offence has been described as striking at the heart of the judicial system (see R v Hakim, CCA, 5 September 1996, unreported; see also R v Taouk (1992) 65 A Crim R 387 at 392). Deterrence is an important consideration in this regard." 24 His Honour concluded that the sentence should be varied and said that he would "not exclude a custodial sentence as something which could have been pronounced by Judge Gibson." However, because of the attitude of the Crown before the sentencing judge, a full time custodial sentence was not imposed. 25 In that case, Hulme J said of the order made by the sentencing judge that, "it was a wholly inadequate way of dealing with the respondent's criminality." He said: "Indeed, in my view, the approach taken by the Crown at first instance was inadequate in that regard. It is to be inferred he benefited by his perversion of the course of justice, and neither the order made by Judge Gibson nor that indeed as originally sought by the Crown would have in any way deprived him of the benefits he received by his dishonest conduct. In my view it could be an extremely rare case of which this is not one that the penalty imposed for the respondent's offence should be less than one which hurt significantly." 26 There can be little doubt that when the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits or intends to benefit from the doing of the agreed act, extraordinary circumstances will be required before a custodial sentence is not appropriate. 27 The situation may be different when the offender, although a willing participant, neither initiates or stands to benefit from the offence. No doubt it was for this reason that Giles JA remarked with respect to the co-accused in Purtell, who had assisted in creating the false reference, but received the same sentence, that her circumstances were not comparable to those of the principal offender. Hulme J of course, emphasised the need to impose a sentence "which hurt significantly" in the context of an offender who had benefited from his dishonest conduct. 28 In R v Chapman, Court of Criminal Appeal, 21 May 1998, unreported, this Court examined the circumstances where a serving police officer gave false evidence in his own defence. The Crown appealed when the sentencing judge deferred passing sentence and imposed a good behaviour bond. Simpson J examined the relevant authorities observing that "absent extraordinary circumstances, a sentence of full time imprisonment must be imposed." Her Honour referred to the judgment of Abadee J in R v Bulliman, Court of Criminal Appeal, 25 February 1993, unreported, when his Honour stated "General deterrence is the point of importance to be particularly emphasised in this type of case." 29 R v Aristodemou, Court of Criminal Appeal, 30 June 1994, unreported, involved an unsuccessful appeal against a custodial sentence imposed for giving false evidence to an ICAC inquiry. Of significance to the present case is the fact that Badgery-Parker J rejected a submission that the court should look more leniently on false evidence given to protect another as opposed to false evidence given by the wrongdoer. 30 He said: "I would reject that submission entirely. The will of the community which led to and is manifested by the enactment of the ICAC Act is that corruption should be eradicated from the community and that the means to produce that result should include the coercive and inquisitory powers conferred on ICAC by the statute. Where a person acts so as to frustrate an ICAC investigation into corruption, it would appear to me that the community would approve that he should be severely punished. In particular, I do not accept the proposition that the community would regard as in any way a mitigating circumstance that the motive for the applicant's false swearing was not to conceal corruption on his own part but was to conceal the corrupt conduct of others. NO doubt there is an acceptance on the part of those who commit crime that it is dishonourable to inform on others and that there is some nobility in declining to do so. It by no means follows that the same view is taken by right-thinking members of the community and for my part, I refuse to proceed on the assumption that that is so. It is no doubt true that in some circumstances the seriousness of a crime may be seen to be mitigated if it was committed for an honourable, albeit mistaken motive. It is in my view an attempt to press that submission too far if the conduct is such to defeat the purpose of legislation enacted in the public interest." 31 These observations were made at a time when the work of the ICAC was relatively new and its activity subject to considerable controversy. There can be no doubt that the courts must always act to protect the integrity of curial process, the only question being whether a full time custodial sentence is necessary in all cases? 32 Badgery-Parker J recognised that there may be cases when it is not required but that they will be unusual. He said: "Anyone who commits an offence of perjury or false swearing in the courts of judicial proceedings or in proceedings such as a Royal Commission or an ICAC Inquiry should do so in the clear understanding that if his offence is detected he will go to gaol except in very particular circumstances." 33 Badgery-Parker J also considered the significance, if any, of the fact that in at least six cases, which could be identified, offenders had given false evidence denying their own corruption, but were dealt with by magistrates without the imposition of a gaol term. He said that in his opinion, in the absence of extraordinary compelling subjective circumstances, the sentences were inadequate. 34 The decision of the Court of Criminal Appeal in R v Chad, 13 May 1997, unreported, is to similar effect. In that case the personal circumstances of the offender were said to be relevant to the length of any prison sentence but that a term of full-time custody was appropriate. 35 There are a number of decisions relating to similar offences in both Victoria and Western Australia where a full-time custodial sentence has not been imposed. See R v Healy, Court of Appeal of Victoria, 4 August 1997, unreported; R v Stone, Supreme Court of Victoria, 4 March 1998, unreported; R v Paul Ronald Delio, Supreme Court of Victoria, 23 March 1998; Christian v R Supreme Court of West Australia Court of Criminal Appeal, 17 May 1996; R v Wiltshire, [1999] WASCA 113. These decisions only demonstrate that a non-custodial may be appropriate depending on the circumstances of the particular case. 36 Attention has been drawn to the statistical material which indicates that in many cases a custodial sentence has not been imposed. Whether the sample is adequate may be questioned. However, allowing for some cases in which the circumstances were truly exceptional, it may be that when sentencing for this type of offence the courts have not had sufficient regard to the principles stated and repeated by this Court. 37 There is no doubt that the applicant presented a strong subjective case. He has demonstrated that notwithstanding some earlier disadvantages in his life he is a person with a maturity of purpose and self-discipline resulting in his achieving tertiary academic qualifications and appropriate employment. Although he has now offended on two occasions the first could be viewed as minor and, notwithstanding the gravity of the second matter, he has good prospects of rehabilitation. 38 A challenge is made to the finding by his Honour that the applicant's decision to leave the court on 7 October 1999 and not give evidence, was motivated by knowledge that the police were aware of the illegal agreement. Emphasis was given to the statement in the record of interview that this fact did not influence the applicant's decision, and it was submitted that his Honour should have accepted this statement rather than form a different conclusion. 39 In my opinion it was open to his Honour to reject the applicant's statement in the record of interview and form the conclusion that he did. Accordingly, it was appropriate for his Honour to conclude that this was not a case where an illegal intention had been formed and then abandoned before the intended act was carried out. If that had been the case, it may have been possible to adopt a different view of the sentence which his Honour imposed. 40 With respect to the submission in relation to periodic detention, it is true that it is not apparent as to why the applicant did not give consent to serving his sentence in this manner. However, the documents indicate that he was employed for six days each week and it may be assumed that there was a concern that if he was allowed to serve his sentence by periodic detention he would not be able to continue in his employment. No doubt, after receiving advice, the decision was made to press for a sentence which did not involve any form of custody, rather than take a step which might encourage his Honour to impose a sentence to be served by periodic detention. In these circumstances the applicant's complaint that his Honour should have further pursued this option, cannot be sustained. 41 The present case is a difficult one. It is not clear why the applicant gave in to the request of Mr Gabriel and agreed to give false evidence. It can only be assumed that he took this action from some misguided view that he could be of assistance to a friend. The commission of the offence and the imposition of a term of full time custody is a tragedy for a young man, who from all of the available evidence, has managed to structure a productive and fulfilling start to his life. 42 The Crown draws attention to the objective criminality of the applicant. It is plain that because of the agreement by the applicant to give false evidence, instructions were given to Mr Gabriel's solicitor, and no doubt the initial part of the case against Mr Gabriel was conducted on the basis of those instructions. The applicant having formed the intention to give false evidence, attended court for that purpose and maintained the intention after the matter was adjourned part heard. The intention was only abandoned after the proceedings had commenced and before the adjourned hearing took place. 43 I accept that the subjective matters in this case are significant. Although the applicant has a previous conviction, his record of academic achievement and employment indicate that he has significant prospects of leading a productive and worthwhile life. However, the offence which he committed is serious and in my opinion it cannot be said that the circumstances of its commission fall at the lowest end of the scale of criminality. Having regard to the previous statements made by this Court in relation to this type of offence, his Honour did not err by imposing a sentence of full-time custody. 44 Whatever may be the view of this Court of the sentence which was imposed it can only interfere where error has been demonstrated (see Slander v The Queen (1999) 195 CLR 655 and Dinsdale v The Queen (2000) 175 ALR 315. Provided the sentence imposed was within the discretion of the sentencing judge this Court cannot intervene. 45 In my opinion having regard to the serious nature of the offence, the sentence imposed by Sides DCJ, although undoubtedly at the top end of the available range, was properly within the discretion available to him and error has not been demonstrated. I would grant leave to appeal but dismiss the appeal.

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