Behman v R

[2014] NSWCCA 239

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Behman v Regina [2014] NSWCCA 239
Hearing dates:	21 July 2014
Decision date:	29 October 2014
Before:	Hoeben CJ at CL at [1] McCallum J at [2] Garling J at [33]
Decision:	Time in which to seek leave to appeal extended to 27 March 2014; leave to appeal granted; appeal allowed; sentence imposed at first instance quashed and, in substitution therefor, applicant sentenced to an aggregate term of imprisonment with a non-parole period of 18 months commencing on 15 February 2013 and concluding on 14 August 2014 and a balance of term of 6 months concluding on 14 February 2015; applicant ordered to be released immediately.
Catchwords:	CRIME - appeal - sentencing - aggregate sentence - indicative sentences revealing departure from the principles stated in Pearce v The Queen
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Police Integrity Commission Act 1996
Cases Cited:	Einfeld v The Queen [2010] NSWCCA 87; (2010) 200 A Crim R 1 Grealish v R [2013] NSWCCA 336 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Einfeld [2009] NSWSC 119 R v F [2002] NSWCCA 320; (2002) 132 A Crim R 307 Truong v R; R v Lee; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category:	Sentence
Parties:	Tarek Behman (applicant) Regina (respondent)
Representation:	Counsel: H Dhanji (applicant) N Adams (Crown) Solicitors: Elie Rahme & Associates (applicant) IV Knight, Director of Public Prosecutions (respondent)
File Number(s):	2010/225970
Publication restriction:	None
Decision under appeal	Date of Decision: 2013-02-15 00:00:00 Before: Sorby DCJ File Number(s): 2010/225970

Judgment

1. HOEBEN CJ at CL: I agree with McCallum J.

1. McCALLUM J: Tarek Behman seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to one count of giving false evidence to the Police Integrity Commission contrary to s 107(1) of the Police Integrity Commission Act 1996 and was found guilty by a jury of eight counts of making a false statement to obtain a financial advantage contrary to s 178BB(1) of the Crimes Act 1900. Each offence carried a maximum penalty of imprisonment for 5 years. There is no standard non-parole period prescribed for any of the offences.

1. The learned sentencing judge exercised the power under s 53A to impose an aggregate sentence for all offences. The aggregate sentence imposed was a term of imprisonment for 3 years with a non-parole period of 2 years. The section requires a sentencing judge to indicate to the offender, and to record, the sentence that would have been imposed for each offence had separate sentences been imposed. His Honour indicated that he would have imposed sentences of imprisonment for a period of 16 months for each of the offences on the indictment and a sentence of imprisonment for 18 months for the offence of giving false evidence to the Police Integrity Commission. The sentence indicated in respect of that offence was said to take into account the applicant's entitlement to a discount of 25 per cent for the plea of guilty. The applicant was not entitled to any discount in respect of the counts on the indictment, which were defended.

1. The applicant was a serving policeman at the time of the offences. The eight counts under s 178BB(1) of the Crimes Act arose from the applicant's treatment of infringement notices he received for speeding offences detected by camera. On seven occasions between December 2004 and July 2007, upon receiving infringement notices for offences committed by him, the applicant signed a false statutory declaration nominating another person as the driver. The eighth offence was for aiding and abetting his partner to do the same thing. The fines avoided varied in amounts between $75 and $175. The total advantage derived from the commission of the offences was $761.

1. The drivers nominated by the applicant were said to live in Egypt. There was evidence that the applicant was aware, or believed, that authorities would not follow up cases where the nominated driver was overseas.

1. The offence under the Police Integrity Commission Act 1996 related to the applicant's false denial that he had, in a statutory declaration in relation to a traffic infringement notice, nominated another person as the driver of his vehicle when he was in fact the driver. That offence was committed at a private hearing of the Police Integrity Commission on 26 June 2008. Prior to the hearing, the applicant had received a notice requiring him to produce a statement of information in respect of the matters referred to in a schedule to the notice. The schedule asked whether the applicant had ever falsely nominated another person as the driver of his vehicle when in fact he was the driver and committed the offence. He responded in the negative.

1. At the hearing of the Police Integrity Commission on 26 June 2008 the applicant gave evidence under oath. After advising the applicant of the consequences of giving false or misleading evidence at a hearing of the Commission, the Commissioner asked whether the reply provided in the notice was the truth. The applicant said "it was at the time correct" ... "at the time I wrote it, it was the truth that I knew at the time". He was then asked whether there was something he would like to change about the notice, to which he replied "no". In a further answer, he confirmed that the answer "no" was the truth.

1. The applicant had a very strong subjective case. He had no prior convictions. At the time he was sentenced, he was aged 48 years. He was separated from his wife and had raised their four sons without any assistance from her. The evidence on sentence included powerful statements from the applicant's sons attesting to the success with which he did so. Two are now accountants, with one also undertaking a law degree. The other two are in businesses established for their benefit by the applicant.

1. The first ground of appeal is:

The sentencing judge erred in assessing the objective gravity of the offences under section 178BB and, in particular, failed to take into account the very small financial advantage involved in the offences.

1. In assessing the objective gravity of the offences, the judge expressly referred to the small amounts involved. His Honour said:

"The facts of the eight counts of make a false statement to obtain financial advantage are obviously objectively serious in relation to each count. The offender was a serving police officer with a duty to uphold the law. He took advantage of his position and knowledge of police procedure and resources to circumvent the application of law in relation to eight relevant offences. Whilst the offences were not part of some overall criminal system devised by the offender, they were repetitious over a three and a half year period. Whilst the total amount of money incurred in that offence is not large, the amount involved in each fine was large enough for the offender to develop the idea to avoid having to pay it, and in the case of the aid and abet in count 3 on the indictment, large enough to aid and abet Naomi Brooks to avoid paying the fine. It is the repetitious nature of the offending, together with the offender's position as a police officer, and his inside knowledge that went with the job, that are the factors by which I assess the objective seriousness of the offending."

1. When stating the indicative sentences, his Honour stated that he considered each offence to be "of similar, moderate seriousness".

1. Those remarks reveal that his Honour did have regard to the small amounts involved and gave that factor such weight as he considered it was due. I do not think they reveal patent error. In my view, ground 1 should be dismissed.

1. Notwithstanding the fact that a parity ground is ordinarily dealt with last, in the circumstances of this case there is a degree of overlap in the considerations relevant to the remaining grounds and accordingly it is convenient to consider them together. Ground 2 is that the sentences imposed for the offences under s 178BB are manifestly excessive and infected the aggregate sentence imposed. Ground 3 is that the applicant has a justifiable sense of grievance as a result of the marked disparity between his sentence and the sentence imposed on Peter Grealish for similar offences. Ground 5 is that the learned sentencing judge erred in failing to have proper regard to the principles enunciated in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. (Ground 4 was not pressed).

1. Peter Grealish was not, strictly speaking, a co-offender. He is a liquidator who was introduced to the applicant by a mutual friend. He was sentenced for four offences contrary to s 178BB similar to those for which the applicant was sentenced. There was evidence before the Court sentencing Mr Grealish that it was the applicant who suggested to him the mechanism for committing the offences, namely, by nominating an Egyptian person who had returned overseas. Mr Grealish was also sentenced for an offence against s 107 of the Police Integrity Commission Act. He put forward a case in respect of that offence that he had given false evidence to the Commission at the urging of the applicant and because he held fears for his own safety and the safety of his children due to fear of the applicant. However, the sentencing judge rejected that explanation, stating that he did not regard Mr Grealish as a witness of truth.

1. As submitted by the Crown, the applicant and Mr Grealish were not co-offenders in relation to the offences against s 178BB but only offenders who committed similar crimes. The only suggestion of their having offended together in the relevant sense was in respect of count 1 on the applicant's indictment and count 6 on the Grealish indictment. In each of those matters, each offender had witnessed the other's statutory declaration but neither was charged in respect of the role he played in the other's offence.

1. For the reasons explained below, the sentences imposed on Mr Grealish are not irrelevant but the parity ground cannot be made out.

1. It is appropriate, as submitted by the Crown, for this Court to have regard to the remarks of Simpson J in R v F [2002] NSWCCA 320; (2002) 132 A Crim R 307 at [38]; Meagher JA and Howie J agreeing at [1] and [50]:

Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case.

1. I would respectfully agree with those remarks. In the present case, however, the call for consistency is stronger. The Court in F was considering a Crown appeal in respect of the sentence passed for a very serious sexual offence committed against a six-year old girl. The Court unanimously (and, with respect, correctly) indicated that the sentencing decision offered by the offender as a comparator would have been quite inadequate to reflect the seriousness of the conduct for which F stood to be sentenced. The description of that conduct at [10] of Simpson J's judgment amply supports that conclusion.

1. In the present case, although Mr Grealish and the applicant are not strictly co-offenders, the conduct for which Mr Grealish was sentenced was very similar to that for which the applicant stood to be sentenced. The applicant committed a greater number of offences and they were committed over a longer period of time. He was a serving policeman, and that is undoubtedly an important consideration.

1. However, in the case of Mr Grealish, this Court held that indicative sentences of 9 months each for the four offences against s 178BB(1) displayed error "in that the objective seriousness of the first of the four offences alone could not justify a term of imprisonment of that duration". The Court also held that indicative sentences of 9 months for each of the remaining three offences revealed an aggregate sentence which was manifestly excessive: Grealish v R [2013] NSWCCA 336 at [65] per Hall J; Leeming JA and Adams J agreeing at [1] and [2].

1. The Court re-sentenced Grealish in respect of those offences to a good behaviour bond for the first offence and, in respect of the remaining three, an aggregate sentence of 3 months. That sentence was accumulated by 1 month on the term of imprisonment of 18 months for the offence against s 107 of the Police Integrity Commission Act, in respect of which the Court specified a non-parole period of 8 months (none having been specified by the sentencing judge). In the result, Mr Grealish had a total sentence of 18 months with a non-parole period of 9 months.

1. Since that was a decision of this Court in respect of very similar offending, although there is no issue of "parity" as that term is comprehended in the authorities, it stands as a strong guide as to the appropriate range.

1. Another way of testing the appropriateness of the sentence imposed on the applicant is to compare it with the sentence imposed on Mr Marcus Einfeld, the former Federal Court judge: R v Einfeld [2009] NSWSC 119. As noted on behalf of the applicant, that was a case which had its genesis in similar conduct. Mr Einfeld nominated a dead person as the driver of his car when it was caught speeding. A statutory declaration to that effect was not processed and the case was listed for a defended hearing, at which he perjured himself (an offence carrying a maximum penalty of 10 years). In the course of an investigation into the alleged perjury, he made a lengthy statement attempting to explain how he had come mistakenly to nominate a dead person as the driver. That statement was false, resulting in a charge of perverting the course of justice, an offence carrying a maximum penalty of 14 years). The overall sentence imposed for those two offences was one of 3 years with a non-parole period of 2 years, the same as the sentence passed on the applicant. An appeal against that decision was dismissed: Einfeld v The Queen [2010] NSWCCA 87; (2010) 200 A Crim R 1.

1. Acknowledging the limits of such comparisons, a consideration of that decision reinforces my apprehension that the indicative sentences stated in the present case were manifestly excessive. Apart from anything else, they entail the difficulty identified by this Court in Grealish that the very first offence could not be said to have warranted a term of imprisonment for 16 months. As already noted, a similar approach was held to reveal error in Grealish by reference to the principles stated in Pearce v The Queen.

1. In that context, the Crown relied on the remarks of Button J in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] as follows (Hoeben CJ at CL and Garling J agreeing at [1] and [2]):

But it is clear that the process of aggregate sentencing, unlike traditional sentencing, does not permit of a mathematical analysis of the degrees to which partial and complete concurrence or accumulation have been adopted by a sentencing judge. All one can really do is look at each of the individual offences for which the offender was to be dealt, consider the indicative sentences (though I appreciate that it is the submission of the Crown that many of these were erroneous as well), and then determine whether the aggregate head sentence and aggregate non-parole period are erroneous in light of that background. The whole point of aggregate sentencing is to free sentencing judges from the task of creating elaborate sentence structures. A logical consequence of that is that this Court is not in a position to undertake an analysis of explicit questions of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.

1. I would respectfully agree with those remarks. It would defeat the whole purpose of introducing a power to impose an aggregate sentence to require sentencing judges, in their indicative sentences, to specify each individual sentence including dealing with commencement dates, concurrence and accumulation with the specificity required of individual sentences in accordance with the principles stated in Pearce. However, an indicative sentence that clearly infringes the principles stated in Pearce is a different matter. A statement that each offence warranted a term of imprisonment of 16 months in my view reveals error pointing to an excessive aggregate sentence.

1. For those reasons, I accept that grounds 2 and 5 are made out and that it is necessary for the Court to re-sentence the applicant.

1. In my view, the applicant's offending was more serious than that of Mr Grealish. It extended over a lengthier period. As submitted by the Crown, the later offences may be seen increasingly to demonstrate an attitude of contumelious disregard for the law by an individual sworn to uphold it.

1. Conversely, as already noted, the applicant had a strong subjective case.

1. I consider that an aggregate sentence should be imposed.

1. The first offence would not on its own have warranted a term of imprisonment. In my view, it is enough to indicate that, but for the imposition of an aggregate sentence, the sentence for that offence would have been a non-custodial option. However, having regard to the object of s 53A of simplifying the sentencing task, I do not think the statute requires the imposition of a separate, non-custodial sentence for that offence. I accept that is what occurred in Grealish, but in my view it is within the power under s 53A for a sentencing judge to indicate that a first offence would not of its own have warranted a term of imprisonment but still to deal with that offence by the imposition of an aggregate term of imprisonment, assuming the other offences included within the aggregate do warrant imprisonment.

1. As to the remaining offences, the indicative sentences are as follows: for counts 2 and 3 (committed close together about a year after count 1), a sentence of imprisonment for 3 months; for counts 4, 5, 6 and 7, sentences of imprisonment for 6 months; for the last count, a sentence of imprisonment for 9 months. There is no basis for disturbing the judge's indication in respect of the offence against s 107 of the Police Integrity Commission Act. I consider that the applicant's offending warrants the imposition of an aggregate sentence of imprisonment for 2 years with a non-parole period of 18 months. The orders I propose are:

(1) that the time in which to seek leave to appeal be extended to 27 March 2014;

(2) that leave to appeal be granted;

(3) that the appeal be allowed;

(4) that the sentence imposed at first instance be quashed and in substitution therefore that the applicant be sentenced to an aggregate term of imprisonment with a non-parole period of 18 months commencing on 15 February 2013 and concluding on 14 August 2014 and a balance of term of 6 months concluding on 14 February 2015;

(5) that the applicant be released immediately.

1. GARLING J: I agree with McCallum J.

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Decision last updated: 30 October 2014