Regina v Pile

Court of Criminal Appeal (NSW)|2005-03-11|Before: Spigelman CJ, Grove J, Bell J

JUDGMENT OF: Spigelman CJ at 1; Grove J at 43; Bell J at 2

DECISION: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence imposed in the District Court and, in lieu thereof, sentence the applicant to a fixed term of imprisonment for five months to commence on 16 August 2005 and to expire on 15 January 2006.

Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Evidence Act 1995

R v Aristodemou (Unreported, CCA, 30 June 1994) R v Bulliman (Unreported, CCA, 25 February 1993) R v Chad (Unreported, CCA, 13 May 1997) CASES CITED: R v Simpson (2001) 53 NSWLR 704 R v Thomson (2000) 41 NSWLR 383 R v Young [2003] NSWCCA 276

Clinton John Pile (Applicant) PARTIES: Regina (Respondent)

A Francis (Applicant) COUNSEL: G Rowling (Crown)

S O'Connor (Applicant) SOLICITORS: S Kavanagh (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2004/1835

SPIGELMAN CJ GROVE J BELL J

Firday 11 March 2005 Regina v Clinton John Pile Judgment 1 SPIGELMAN CJ: I invite Justice Bell to deliver the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant in the District Court. On 5 December 2003, the applicant appeared for trial on an indictment that charged him with one count of perjury contrary to s 327 of the Crimes Act 1900. He entered a plea of guilty and, on 18 December 2003, was sentenced to a fixed term of nine months' imprisonment. The maximum penalty for this offence is a term of imprisonment for ten years. 3 The indictment charged the applicant that, on 4 November 2002, in connection with the trial of a man named Dean Vaughan at the Bathurst District Court, he made a false statement on oath knowing the statement to be false concerning a matter material to the proceedings, namely, that the armed robbery of the Kandos Post Office on 30 January 2002 was committed by him in the company of a man named Peter Carter. 4 The applicant had been earlier convicted of the armed robbery of the Kandos Post Office and sentenced by Bellear DCJ on 29 August 2002 for this offence. Following his arrest, the applicant made full admissions in an electronically recorded interview in which he named his co-offender as Dean Vaughan. 5 At the sentence hearing before Bellear DCJ, the applicant gave evidence confirming the truthfulness of the account he had given to the police, including that his co-offender was Dean Vaughan. Judge Bellear queried whether the applicant had been asked if he was willing to give evidence against Vaughan. He said that he had been asked to do so and that he had declined. The applicant was thus sentenced without the benefit of any discount on account of future assistance to the prosecution in the proceedings against Vaughan. 6 At Vaughan's trial, the applicant was produced to the Court by means of an order under s 77 of the Crimes (Administration of Sentences) Act 1999. He gave evidence on 4 and 5 November 2003 asserting that his co-offender was not Vaughan but rather that he was a man named Peter Carter. 7 The transcript of the evidence given by the applicant before Bellear DCJ and at the trial of Vaughan was tendered on the sentence hearing. The applicant gave evidence admitting that the evidence that he had given at the Vaughan trial with respect to the person Peter Carter was false. 8 The sentencing Judge accepted the applicant's evidence concerning the circumstances in which he came to give the deliberately false evidence. She found that he had been a protection prisoner at the Junee Correctional Services Centre when he was told by the staff at that centre that he was required to attend court at Bathurst. He explained to the staff that his court commitments were completed. He was not told the reason for his removal to the Bathurst Correctional Centre. 9 Vaughan was an inmate at the Bathurst Correctional Centre. The two men were not housed together but there was only a mesh screen that separated the applicant from Vaughan during the two or three days that he was held at Bathurst before being called to give evidence. During this time, the applicant was approached by another inmate in the protection area and told by him to "do as Dean said", a reference to Vaughan. At the time of giving the applicant this advice, the inmate was making a stabbing motion with his hands. 10 The applicant was taken to the Bathurst Court and placed in a cell next to the cell occupied by Vaughan. Vaughan was able to see and speak to him. Vaughan instructed him to tell the Court that his co-accused was a person named Peter Carter. 11 Judge Bellear had sentenced the applicant to a term of six years' imprisonment, commencing on 16 August 2002, with a non-parole period of four and a half years. This Court allowed an appeal against the severity of that sentence and reduced the non-parole period to three years. At the date of sentence, the applicant was thus serving a sentence of six years' imprisonment with a non-parole period of three years. 12 The Judge reviewed a number of authorities relating to the sentencing of offenders for perjury and like offences: R v Bulliman (Unreported, NSWCCA, 25 February 1993); R v Aristodemou (Unreported, NSWCCA, 30 June 1994) and R v Chad (Unreported, NSWCCA, 13 May 1997). Her Honour considered that, in light of the seriousness with which this Court has held that such offences must be viewed, it was necessary to impose a sentence of full-time custody that would be accumulated on the non-parole period of the sentence being served. She was of the view that a relatively short fixed term sentence should be imposed. The sentence of nine months' imprisonment was expressed to commence on 16 August 2005 and to expire on 15 May 2006. As her Honour observed, the effect of the sentence did not operate to wholly deprive the applicant of the benefit of the finding of special circumstances that this Court had earlier made. 13 The sentence is challenged on three grounds. In light of the second ground of appeal, which relates to the Judge's assessment of the objective seriousness of the offence, it is necessary to refer to the evidence that was before her Honour in somewhat greater detail. 14 On 4 November 2002, the applicant was called in the presence of the jury at Vaughan's trial and sworn to give evidence. He was asked by the Crown Prosecutor: "Q. And you committed the offence in the company of the accused Dean Vaughan didn't you? A. No. Q. You see I suggest to you that you've given a statement to the police in relation to your involvement in the armed robbery and the stealing and malicious damage of the motor vehicle? A. Yes I did.

Q. You've also given evidence on oath before his Honour Judge Bellear on Friday 23 August 2002 in relation on your sentence in relation to your involvement and the accused Clinton Pile's involvement in those three - the accused Dean Vaughan's involvement in those three offences, that's correct isn't it? A. Yes that's correct.

Q. You now say do you that it wasn't Dean Vaughan?" (T 04/11/02, p1.39-57.) 15 The trial Judge intervened at this point and sent the jury out. He asked whether the applicant had offered to give evidence for the Crown and whether he had obtained a reduction in sentence for doing so. The Crown Prosecutor told the Court that the applicant had initially made such an offer but that he had withdrawn it and that he had not received a discount in respect of the sentence imposed upon him. The Judge then read out a series of questions and answers given by the applicant at the sentence hearing before Bellear DCJ. His Honour then inquired: "Now do you remember being asked those questions and giving those answers? A. Yes I do your Honour it was not true.

Q. Mm? A. Yes I do but wasn't true.

Q. You remember but? A. It wasn't true.

Q. So you're now going to - Do you understand that by having lied on your oath you have committed an offence? A. Yes I do.

Q. And do you understand that you may be dealt with for the offence of false swearing or perjury? A. Yes I do.

Q. And do you understand that if you are charged with that offence by what you've just said you may have already conceded your admission of it? A. Could you repeat that please I don't understand.

Q. By what you've already said, do you appreciate that you've admitted committing the offence of false swearing or perjury by lying on your oath? A. Yeah.

HIS HONOUR: Alright." (T 04/11/02, p2.46-3.15.) 16 The Crown Prosecutor informed the trial Judge that he had an application to make pursuant to s 38 of the Evidence Act 1995. The application was granted without objection. The Crown Prosecutor invited the Judge to give the applicant a warning. After telling the applicant that he was to be asked questions about the evidence that he had given before Bellear DCJ, his Honour said this: "The second thing is this, although it may be academic in view of what you've said already, you can decline to answer any questions that may incriminate you in the commission of a criminal offence. In other words if you're asked did you tell a lie or the truth to Judge Bellear depending on your answer it may incriminate you in the commission of a criminal offence, as I say it maybe (sic) academic in view of what you've already told me about your knowledge that you having lied to Judge Bellear on oath, is the offence of perjury. But nonetheless you are entitled to decline to answer any question which may incriminate you in the commission of a criminal offence. If you wish to decline all you have to do is say that 'I decline to answer that question on the ground that it may incriminate me' or some such words, do you understand that? WITNESS: A. Yes I do your Honour." (T 04/11/02, p3.57-4.16.) 17 Following this warning, the applicant was asked a series of questions by the Crown Prosecutor concerning the evidence he had given before Bellear DCJ. He said that the evidence that he had given on that occasion concerning Vaughan was false. He went on to give evidence that his co-offender was a man named Peter Carter. 18 The proceedings were adjourned to the following day while the applicant was still in chief. On the resumption of the proceedings, the transcript records the following exchange before the applicant was asked any further questions: "WITNESS: Can I have a couple of minutes to see the legal representation please?

HIS HONOUR: As a witness you don't have legal representation.

CROWN PROSECUTOR: Q. Mr Pile do you still say that every time you refer to Dean Vaughan or Dean in the interview with police that it refers to somebody else? A. I wish to say nothing further to incriminate myself.

Q. You said yesterday that - - A. I wish to say nothing further. HIS HONOUR: Mr Pile you have to answer the questions unless the question may incriminate you in the commission of a criminal offence. So you have to listen to each individual question, you can't just give a blanket I'm not going to answer. Do you understand? A. No.

HIS HONOUR: Well listen to the question, if you have any problem with it then I will assist you, go on Mr Crown.

CROWN PROSECUTOR: Q. Referred yesterday to a person by the name of Peter Carter, remember that? A. Yes.

Q. Where did you meet him? A. I don't wish to answer this question your Honour.

HIS HONOUR: You have to answer that question Mr Pile.

A. In Mudgee." (T 05/11/02, p 1.18-2.01.) 19 Thereafter, the transcript reveals that the applicant on a number of occasions sought to avail himself of the privilege: "CROWN PROSECUTOR: Q. You said that in your recorded interview with the police that Dean Vaughan assisted in robbing, stealing the motor vehicle the Hyundai that's correct isn't it? A. I don't wish to answer that question to incriminate myself anymore. HIS HONOUR: Q. I'm sorry? A. I don't wish to answer the question. CROWN PROSECUTOR: Q. And when you said in your recorded interview that it was Dean Vaughan that went into Tina's place and got the tracksuit that's correct isn't it? A. I don't wish to answer that question either. HIS HONOUR: Q. Well you have to answer that question Mr? A. Well I don't wish to your Honour I'm sorry I don't want to incriminate myself your Honour. HIS HONOUR: You're only being asked at the present time Mr Pile about what you told police when you were interviewed, now we all know what you told the police when you were interviewed because the record of the interview that you had with the police is an exhibit in the trial. So acknowledging what you told police will not of itself incriminate you in the commission of a criminal offence. Q. Do you understand that? A. Yes I do your Honour but I just don't wish to answer any questions I'm sorry" (T 05/11/02, p3.29-57). 20 During the course of the applicant's evidence given at the sentence hearing, his counsel sought to lead from him the contents of a discussion that he had had with the Crown Prosecutor and the Crown's instructing solicitor prior to giving evidence at Vaughan's trial. The Crown objected to the evidence. The basis of the objection is not entirely clear. The transcript records that the Crown Prosecutor submitted the following: "CROWN PROSECUTOR: I'm going to object to the whole area of this conversation at this point, because of what might be possibly said. It then puts the Crown in the position - first of all, I say it's not relevant - this area, whatever happened between the DPP and Mr Vaughan. Secondly, most of this evidence is essentially traversing his plea in my submission. Thirdly, if your Honour allows this evidence, it then puts your Honour in a situation where the Crown may have call the Crown Prosecutor - - " (T 18/12/03, p8.36-44). 21 In the event, the terms of the conversation were not given. At the sentencing Judge's suggestion, the applicant's counsel led from him that after a brief discussion with the Crown Prosecutor and a solicitor from the DPP, the applicant considered that he had to give evidence at the trial. Thereafter, the Judge informed the parties that she proposed to ask the applicant whether he had informed the Crown at the conference that threats had been made to him. The Crown Prosecutor objected to the question and, in light of the objection, the Judge did not ask it. 22 Given that the applicant was giving evidence in mitigation of sentence for an offence arising out of the evidence that he had been compelled to give, the Crown's objection to her Honour's question, and indeed to evidence generally of what the applicant had said to the Crown Prosecutor in the course of the conference, seems to me to have been misconceived. It was relevant to the question of sentence to know whether the applicant had complained of being threatened and whether he had indicated that he did not propose to adhere to the evidence that he had given before Bellear DCJ. 23 I turn now to the grounds of appeal.

Ground one - the sentencing Judge erred by failing to have regard to the utilitarian value of the plea and the contrition demonstrated by it. 24 The applicant complains that although the Judge referred to the fact that he had entered a plea of guilty, she did not thereafter refer to the plea or how she proposed to take it into account. It was acknowledged that the plea was entered late and that any trial was unlikely to have been lengthy. However, in counsel's submission, the trial might have involved some complexity since a defence of duress would have been mounted. It does not seem to me that a trial in which duress was raised would have been either lengthy or complex. The applicant's plea was a late one and any discount reflecting the utilitarian value of it might have been expected to have been at the low end of the range. 25 The sentencing Judge was not bound by authority to quantify the discount allowed for the applicant's plea of guilty: R v Thomson (2000) 41 NSWLR 383; R v Simpson (2001) 53 NSWLR 704. This does not mean that the failure to give any explanation of how the plea was reflected in the sentence may not be suggestive of error and, in this respect, the applicant's counsel has drawn our attention to the judgment of Hidden J with whom Greg James J and Smart AJ agreed in Young [2003] NSWCCA 276 at 11. 26 In this case, the Judge referred to the plea of guilty at the commencement of her remarks on sentence. She did not return to it. Her Honour is an experienced Judge and I am not persuaded that her failure to give an explanation of how she proposed to reflect the plea of guilty entered on the day fixed for trial in reduction of sentence discloses error. 27 I turn to ground 2 and ground 3 which are different ways of expressing the same challenge.

Ground 2 - The sentencing Judge erred by failing to have regard to the salient features, subjectively and objectively, of the applicant's case which warranted leniency; and Ground 3 - The sentence is manifestly excessive. 28 As I have noted, the Judge reviewed a number of cases in which this Court has discussed the seriousness of the offence of perjury. Counsel for the applicant submits that the circumstances of this case were such as to distinguish it from the line of authority commencing with Bulliman. The Judge accepted the applicant's evidence that he had been threatened. His perjury does not appear to have been motivated by a desire to pervert the course of justice in order to assist the person Vaughan. At the time of his arrest, the applicant had not served a custodial sentence. He had cooperated with the police at the time of his arrest, freely acknowledging his own involvement in the offence and identifying Vaughan as his co-offender. By the time he stood for sentence before Bellear DCJ, he had been taken into custody and had informed his Honour that he was unwilling to give evidence at Vaughan's trial. In doing so, it must have been apparent to him that he was foregoing a discount for future assistance to the authorities in connection with the prosecution of Vaughan. His reasons for coming to that determination may be thought obvious. 29 He was produced to the Court on the trial of Vaughan unwillingly. He did not receive the benefit of legal advice before he was called to give evidence. 30 The sentencing Judge described the position in which the applicant was placed as invidious. I agree. He was required to give evidence in support of the prosecution in circumstances in which he was being held in custody at the same facility as was Vaughan. No evidence was led of the contents of the applicant's discussions with the Crown before he gave evidence. It is not known whether the Crown was on notice that he proposed to depart from the evidence that he had given before Bellear DCJ on the earlier occasion. If the Crown were on notice of that fact, it would seem to me that the applicant should have been called in the absence of the jury at the outset so that the Judge could have complied with the provisions of s 132 of the Evidence Act by informing him that he may have grounds for objecting to answer questions under pt 3.10 of that Act. 31 The sentencing Judge considered that the applicant had been given the opportunity to tell the Court in the absence of the jury the difficulty in which he was placed. As a practical matter, it might be thought unlikely that the applicant would have felt able, with or without the jury present, to say in the presence of Vaughan that he had been threatened and directed by Vaughan to perjure himself. In the way matters unfolded, the applicant was called in the presence of the jury and he denied being with Vaughan at the time of the offence before the jury were asked to retire and before he was given any advice about the privilege against self-incrimination. He had been so advised before he gave the evidence naming Carter which forms the subject of the charge, but the advice was qualified by his Honour's observation that it was probably academic since the applicant had already volunteered that he had lied in the proceedings before Bellear DCJ. Of course, the applicant's offence was not that he gave false evidence before Bellear DCJ, but that his evidence at the trial of Vaughan was false. 32 The applicant's evidence was given under circumstances of some difficulty, accepting the Judge's finding that he had been threatened in connection with it. It would have been desirable for the applicant to have been given the opportunity of obtaining legal advice before he was called. 33 In the circumstances of this case, which I consider to be unusual, I am persuaded that her Honour did err in failing to distinguish the objective seriousness of the applicant's perjury from the cases to which she had referred which, in each instance, involved persons motivated to pervert the course of justice for their own purposes. 34 In the Crown's submission, even if error were identified, this Court would not intervene since no lesser sentence is warranted in law, as provided by s 6(3) of the Criminal Appeal Act 1912. I am not persuaded that is so. 35 The applicant was twenty three years of age at the date of sentence. As I have noted, the sentence imposed for the armed robbery offence was his first custodial sentence. His upbringing was a troubled one, including that his mother had left him when he was aged three years. 36 Three affidavits were tendered on the applicant's behalf on the hearing of the application. An affidavit by Simon Etherington affirmed on 29 October 2004 annexes a large number of certificates and reports attesting to the creditable efforts that the applicant has made while in custody. He has successfully completed a number of courses and applied himself diligently to his employment. In particular, there is a report setting out the results of the applicant's performance at the Normalisation, Education, Treatment and Training (General) Programme. This is a seventeen week course designed for inmates who wish to change their lifestyle and address their criminal behaviour. Generally, the results of the applicant's participation in the course were encouraging in terms of his prospects of rehabilitation. 37 Two affidavits by the applicant were before the Court. The first, affirmed on 16 November 2004, recites that since January 2004, the applicant was housed in the Kirconnell Correctional Centre, a minimum security prison. Since April of that year, the applicant states that he has been working outside the main prison compound. In his most recent affidavit, sworn on 11 February 2005, the applicant states that he has commenced the day release programme, and has been employed as a storeman and spray painter. 38 During his period in custody, the applicant has had no disciplinary charges preferred against him and he states that he has not used drugs. He has the support of a number of members of his family when he is released from custody. He is seeing his son Jack regularly. The child is four years old and living with his mother in Bathurst. 39 In re-sentencing the prisoner, it is necessary to have regard to the purposes of sentencing that are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. It is also necessary to have regard to the aggravating and mitigating factors set out in s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act, to the extent that they are relevant and known to the Court. I am not persuaded that any of the aggravating factors are relevant. I take into account in the applicant's favour as mitigating factors that he was acting under a degree of duress, a consideration to which subsection 3(d) is directed. I consider, in light of the material to which I have referred, that he has good prospects of rehabilitation. I accept that he has shown remorse for his offence. I consider that it is appropriate to discount the sentence that would otherwise be imposed by approximately 15 percent to reflect both the utilitarian value of the plea of guilty and the contrition that the plea evidences. 40 In the circumstances of this unusual case, I would propose a fixed term sentence of five months' imprisonment to commence at the expiration of the non-parole period of the sentence presently being served. 41 For these reasons, the orders that I propose are: (1) Grant leave to appeal;

(3) Quash the sentence imposed in the District Court and, in lieu thereof, sentence the applicant to a fixed term of imprisonment for five months to commence on 16 August 2005 and to expire on 15 January 2006. 42 SPIGELMAN CJ: I agree and add only this - I would not have upheld the appeal on the basis that the term of nine months was in all the circumstances manifestly excessive. However, error has been identified in the way outlined by her Honour Justice Bell. I am satisfied that in all the circumstances, another sentence is warranted in law for the reasons given by Justice Bell. I agree with the orders her Honour proposes. 43 GROVE J: I agree with Justice Bell, and with the additional remarks made by the Chief Justice. 44 SPIGELMAN CJ: The order is as indicated. oOo

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