Gill v The Queen
[2000] WASCA 67
•21 MARCH 2000
GILL -v- THE QUEEN [2000] WASCA 67
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 67 | |
| COURT OF CRIMINAL APPEAL | 21/03/2000 | ||
| Case No: | CCA:126/1999 | 3 FEBRUARY 2000 | |
| Coram: | WALLWORK J MURRAY J SCOTT J | 3/02/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | 12 months imprisonment cumulative reduced to 3 months imprisonment concurrent | ||
| PDF Version |
| Parties: | NICOLE LEE-ANNE GILL THE QUEEN |
Catchwords: | Criminal law Sentencing Giving false information as a surety Incorrectly stating financial position Also that no criminal proceedings pending Mother of three young children Incorrect facts given to Judge |
Legislation: | Bail Act 1982, s 62(b) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : GILL -v- THE QUEEN [2000] WASCA 67 CORAM : WALLWORK J
- MURRAY J
SCOTT J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Giving false information as a surety - Incorrectly stating financial position - Also that no criminal proceedings pending - Mother of three young children - Incorrect facts given to Judge
Legislation:
Bail Act 1982, s 62(b)
(Page 2)
Result:
12 months imprisonment cumulative reduced to 3 months imprisonment concurrent
Representation:
Counsel:
Applicant : Mr J D Allanson
Respondent : Mr M Mischin
Solicitors:
Applicant : Aboriginal Legal Service of WA (Inc)
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 WALLWORK J: The applicant in this matter was sentenced to an aggregate term of 6 years and 2 months imprisonment for a considerable number of offences in the District Court at Perth on 3 June 1999. The aggregate sentence was comprised of 10 sentences of 3 years imprisonment for fraud offences which were all to be served concurrently from 11 November 1998. Then there were two 2 year terms of imprisonment to be served concurrently with each other, but cumulative upon the first aggregate sentence of 3 years imprisonment, making a total of 5 years imprisonment. Those two last-mentioned 2 year sentences were for attempting to pervert the course of justice. Then there were two 1 month sentences for breaches of bail, cumulative upon one another and the 5 year aggregate sentence, making a total to that time of 5 years 2 months imprisonment. Added to that was a cumulative sentence of 1 year's imprisonment for giving false information as a surety. It is that last sentence which is appealed against.
2 At the hearing of this application the grounds of appeal were amended. The ground which remained was that the learned sentencing Judge had erred by imposing the maximum penalty of 1 year's imprisonment for the offence of giving false information as a surety.
3 At the conclusion of the argument the court reduced the one year term of imprisonment to a term of 3 months imprisonment and ordered that the sentence be served concurrently with the 3 year terms of imprisonment, that is from 11 November 1998. That had the effect of reducing the aggregate term of imprisonment from 6 years and 2 months imprisonment to 5 years and 2 months imprisonment, which aggregate term was to operate from 11 November 1998. The applicant was declared eligible for parole.
4 My reasons for agreeing that the term of 1 year's imprisonment should be reduced to a term of 3 months imprisonment to be served concurrently with the earlier sentences are as follows:
5 At the time the applicant was sentenced, the facts given with respect to the relevant offence of giving false information as a surety were that on 11 April 1998 the applicant had falsely completed a Form 8 under the Bail Act 1982 in order to act as a surety for her de facto husband, Mr Towers. The applicant had given false information in that she had incorrectly stated her financial position and had also claimed that she had no criminal proceedings pending against her. After this misleading information had been given, bail had been granted to Mr Towers with the applicant as surety.
(Page 4)
6 At the time the applicant was sentenced she was 27 years of age and the mother of three young children. The eldest child was a girl aged 9 years. There was also a girl aged 5 years and a boy aged 4 years.
7 The applicant had a number of traffic convictions commencing in 1998. She had also in 1995 been charged with a number of offences of dishonesty in Victoria and Queensland. However, it seems that the applicant did not appear in court to answer those charges. There were also the other charges which have been set out earlier in these reasons to which the applicant pleaded guilty on 31 May 1999.
8 When his Honour sentenced the applicant for the giving of the false information as a surety, which sentence is the subject of this application, he was under the impression, as were both counsel, that Mr Towers had not answered his bail. That was wrong but his Honour was not to know that.
9 The learned Judge was told that the applicant's eldest child had been sent to the applicant's parents in Sydney prior to the applicant's incarceration. He was also told that the applicant had been in custody for 145 days after 11 November 1998 and that she had not seen any of her children after her incarceration.
10 The learned Judge was also told that the applicant had been a model prisoner since she had been in custody and that her aims were to get out of gaol and to bring some normality back into her life.
11 Previously the applicant had been an amphetamine user. At the time of the offences for which she was sentenced in June 1999, the mowing service business which the applicant and her husband had commenced approximately six or seven years previously, had begun to fail. The relevant offences were said to have been committed in an effort to keep the family afloat. The antecedent report revealed that the applicant suffered from diabetes, asthma and cervical cancer.
12 It appears from the record of interview that when the applicant was signing as a surety, she answered "no" to a question "Are there any criminal proceedings pending against you?". That answer was incorrect as it was given one day after the applicant had been charged with the other offences for which she was sentenced in June 1999. When the police officers asked the applicant how it was that she had given that answer, the applicant said:
(Page 5)
- "I didn't understand. I was at this place trying to get him out at a quarter past 7. I didn't leave there until 5 o'clock. By the time I got to the JP he helped me, the police helped me fill it out and I just went 'no, no, no, no, no, there, there, there, there, there, there. Can I have Bill please?'"
13 The applicant told the police officer that she had not understood the significance of the question "Are any criminal proceedings pending against you?" She said she did not know that the correct answer to that question might have affected whether or not bail would be granted for her husband. She told the police officers that she did not do that on purpose; that it was really late in the afternoon:
"By the time I got to fill out this form the kids were screaming and I hadn't eaten and - and I was actually in with the JP for quite a long time."
14 The applicant agreed that at the time she had filled out the form there were charges pending, but she said she honestly had not meant to answer the question in that way.
15 When it was then put to the applicant that she had loans which she had not declared on the bail form, she agreed with that. When she was asked why she had not declared them she said: "Because it was late. I had had a bad two or three days." The applicant said it was not done so that she could meet the criteria to be surety for Mr Towers.
16 When it was put to the applicant that she had declared that the particulars in the relevant form were true, she agreed that they were not, but she said:
"People do things by honest mistakes you know. I'm sure you've done them before."
17 At the hearing of this application it was submitted for the applicant that the offence concerning the wrong answers on the form had been an attempt by the applicant to try to get her husband back because she wanted him out of custody, and not for the purpose of attempting to obtain his release so that he could abscond. It was submitted that the maximum term of 12 months imprisonment which had been given to her for that offence should only be imposed for an offence of the worst category, whereas this was not one of those.
(Page 6)
18 It was conceded for the Crown that the applicant had been sentenced upon an incorrect factual basis in that the learned Judge, through no fault of his, had sentenced the applicant on the basis that Mr Towers had obtained bail on the basis of her surety and had then absented himself from the court. It was conceded that Mr Towers, having been released on bail as a consequence of the false information provided by the applicant, had not become a fugitive at the date the applicant was sentenced. It was also conceded that this Court should re-sentence the applicant for the offence.
19 Having in mind the other effective term of 5 years and 2 months imprisonment to which the applicant was sentenced in June 1999 and that she is the mother of three young children whose welfare is important, and also to the principle of totality, it was my view that the correct sentence to be imposed was a sentence of 3 months imprisonment which was ordered to commence from 11 November 1998.
20 MURRAY J: The reasons for judgment published by Wallwork J express sufficiently for me the reasons why I joined in making the final orders to which Wallwork J has referred. I have nothing to add.
21 SCOTT J: The reasons to be published by Wallwork J for allowing this appeal on 3 February 2000 express my reasons for joining in the orders made on that day.
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