Jogia v The Queen - [2000] WASCA 331

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: JOGIA -v- THE QUEEN [2000] WASCA 331

CORAM: KENNEDY ACJ
WALLWORK J
ANDERSON J

HEARD: 14 JULY 2000

DELIVERED : 14 JULY 2000

PUBLISHED : 8 NOVEMBER 2000

FILE NO/S: CCA 235 of 1999

BETWEEN: YOGESH KANJI JOGIA
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - False testimony - Ill health of prisoner - Facts in existence at time of sentencing, true significance only emerging after sentencing - Illness of wife - Sentence of 3 years' imprisonment suspended for 2 years substituted for sentence of 3 years with eligibility for parole

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentence suspended

Representation:

Counsel:

Applicant: Ms J G Fordham
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Kitto & Kitto
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Babic (1997) 93 A Crim R 254
Eliasen (1991) 53 A Crim R 391

Case(s) also cited:

Lowndes v The Queen (1999) 195 CLR 665
Paparone v The Queen [2000] WASCA 127
R v Anderson (1997) 92 A Crim R 348
R v Bailey (1988) 35 A Crim R 458
R v Bekink (1999) 107 A Crim R 415
R v GP (1997) 18 WAR 196
R v H (1995) 81 A Crim R 88
R v Jones (1993) 70 A Crim R 449
R v Liddington (1997) 18 WAR 394
R v Smith (1987) 44 SASR 587
R v Vasich (1998) 99 A Crim R 262
R v Wirth (1976) 14 SASR 291

KENNEDY ACJ: At the conclusion of argument in this matter, the applicant was granted leave to appeal, the appeal was allowed and it was ordered that, in lieu of the sentence imposed upon him by the learned sentencing Judge, he should be sentenced to a term of 3 years' imprisonment, to be suspended for a period of 2 years.
The crime of which the applicant was convicted was extremely serious, striking as it did at the heart of the judicial system. As Wallwork J, with whose reasons I agree, has indicated, the applicant's sentence was suspended due primarily to the emergence of the true significance of his medical condition existing at the time of sentencing.
WALLWORK J: The applicant applied for leave to appeal against a sentence of 3 years imprisonment with eligibility for parole which was imposed upon him on 15 November 1999 after he had pleaded guilty to giving false testimony touching a matter which was material to a District Court action in this State.
The relevant false statement was that he had deposited some jewellery in a bank in New Guinea for safe‑keeping. The maximum penalty for the offence is a term of 14 years imprisonment. The applicant was released from prison on bail on 2 December 1999 pending the hearing of this application for leave to appeal.
At the time he was sentenced, the applicant was 55 years of age. He was born in Fiji and migrated to Australia as a student in 1961. In 1965 he came to Western Australia and studied science at the University of Western Australia. He graduated in 1970 after some interruption to his studies due to epilepsy which he first suffered from in 1963. He then returned to Fiji where he taught mathematics. He later returned to Australia to study for a Master of Science degree. He successfully completed part of that course and then in 1972 he became a mathematics teacher at a college in Perth. Whilst he was a teacher he sold jewellery part‑time.
In 1974 the applicant left teaching and commenced working full‑time with a jewellery firm. In 1974 he commenced his own jewellery business. In 1991 he contracted bacterial endocarditis which damaged a valve in his heart. He was in Royal Perth Hospital for 30 days. In September 1991 he underwent open heart surgery. In 1993 he was awarded an export award in connection with his business.
The relevant offence of perjury was that the applicant made a false statement in an affidavit in civil proceedings in the District Court

concerning certain items of jewellery which he said were being held in New Guinea for safe‑keeping. He later acknowledged that that statement was not true.

After his plea of guilty to the charge the learned prosecutor advised the Judge that the offence arose out of an action against a company through which the applicant had operated a jewellery business. He had at different times described himself as the manager or managing director. At another time he had denied that he held those positions. The Crown's position was that he had owned and operated a business through the company although he was not a director.
The prosecutor informed the learned Judge that two women who had wanted to sell some of their jewellery had left jewellery with the applicant. Two items were the property of Mrs Lilly. One of those items had been valued by the applicant at $1800; the other at $38,500. The second woman, Mrs Potgieter had also left items of jewellery with the applicant, one of which was valued by the applicant at $43,500; the second was valued at $8750. In the civil action they had claimed that the applicant had not returned the jewellery to them.
In the civil action the women had obtained an order that the applicant deliver the jewellery to them. He did not comply with that order. The plaintiffs had then sought orders for contempt against the applicant. In the course of those proceedings the applicant deposed in an affidavit that he had deposited the jewellery at a bank in New Guinea for safe‑keeping.
Having obtained an adjournment of the application which had sought alternatively his imprisonment or a fine, the applicant had flown to Fiji. He later returned to Australia. He reported that the jewellery in question had been stolen from him in Sydney. He was extradited to Western Australia. The jewellery was never recovered or located. No compensation had been paid to the plaintiffs.
In the plea in mitigation the applicant's counsel advised the learned Judge that at the time he had sworn the relevant affidavit the applicant had not known where the jewellery was. He had "continued the lie" about the whereabouts of the jewellery which he had earlier told to Mr Ahern in September 1995 during the execution of an Anton Pillar order.
The learned Judge was told that at the time of the plea the applicant was in receipt of a disability pension. He also worked part‑time earning $80 a week in his daughter's jewellery business. The Judge was told that the applicant had assisted in the caring of drug addicts for Dr George O'Neil. Dr O'Neil had said in a reference that the applicant was a credit to the community in that regard. Other people had testified that the applicant had played an important part in the community.
The applicant apologised to the court for the offence and said it would never happen again. It was submitted that the applicant was quite ill. He had various illnesses, including serious gastro‑intestinal, cardiac and pulmonary neurological problems. He was said to have an adverse cardiac heart state rendering him an invalid. The applicant was an undischarged bankrupt.
The learned Judge noted that the plaintiffs had given the applicant jewellery worth "something like $90,000" and that the applicant seemed to have removed the stones from the settings without any explanation. The settings had been found in Perth. His Honour noted that the applicant had first sworn an affidavit to the effect that the gems had been deposited in a bank in New Guinea. He had then said that the jewellery was with his father in Fiji. He had made no attempt to explain what was going on to the women concerned or to supply them with either payment for or the return of the jewellery which appeared to have vanished. The plaintiffs had been left with an unsatisfied civil judgment for over $90,000.
His Honour noted that the applicant had initially been charged with stealing the jewellery. He knew that the Crown had accepted a plea of guilty to perjury in satisfaction of the indictment. His Honour said that there was a lot of unsatisfied, unexplained surrounding material. He accepted that the applicant had entered a plea of guilty "perhaps not at the first opportunity"; that he had come before the court as a first offender and with some history of usefulness in the community. His Honour accepted that the applicant was in ill‑health. He noted that the applicant was an undischarged bankrupt who could not pay significant monetary penalties.
In reply to submissions on behalf of the applicant, the prosecutor advised the court that an officer of the bank had deposed in an affidavit that the applicant had not deposited the jewellery with the bank for safe‑keeping. He told the learned Judge that the evidence at the preliminary hearing had been that there had never been any deposit of jewellery for safe‑keeping. There had been different jewellery deposited at the bank in connection with the purchase of gold.
In sentencing the applicant the learned Judge said that:
"The Crown accepts and I accept that there are perjuries which are more or less serious but the circumstances that I have outlined, without more, I think require inevitably that I make a finding that this is a perjury of a serious and premeditated nature. Enquiries with the May Bank in Papua New Guinea show that you had deposited jewellery with that bank, it seems as a security for loans made in connection with the purchase of gold but which jewellery was different jewellery from the jewellery in this matter. It seems that you have never deposited jewellery with that bank for safe‑keeping. Indeed it has not been the subject of any explanation why the jewellery should either have been sent to Papua New Guinea for deposit with the bank or left with your father in Fiji at all. Given that you have never deposited property of this sort with the May Bank for safe‑keeping in Papua New Guinea, the only finding I think open to me is that this was a deliberate lie told to the solicitors at the time of the Anton Pillar search and repeated in the affidavit for the purpose of deferring execution of the judgment or further proceedings against yourself in the hope that something might turn up, or perhaps that if the jewellery had been put somewhere else, you would be able to retrieve it. That was a deliberate lie told under oath to a judicial officer for a clearly wrong purpose and I think I have no alternative but to regard it as a serious perjury."
His Honour accepted that the applicant had engaged himself in the community in various ways and of more recent years had been of assistance in the drug rehabilitation field. He accepted that he had pleaded guilty albeit at a reasonably late stage but said he would give him the benefit of that, assuming that the reason the matters were listed for trial was "over your wish to defend the first four counts on the indictment" which had not been proceeded with. Nevertheless, his Honour said that the applicant was entitled to some discount for the pleas of guilty. He was also entitled to credit for his good record and for his history of some involvement in the community. He said that whilst the applicant continued to have some health problems there was nothing in them which was immediately of an emergency nature. His Honour said:
"I have to say, looking at all the facts, that the Crown submission that you have been to a degree using ill‑health as an excuse for not doing things like returning to Western Australia with the jewellery seems true as well."
He said he could see no alternative to a custodial sentence. He sentenced the applicant to 3 years imprisonment with eligibility for parole.
After the sentence had been imposed and on 29 November 1999, Dr Hames, a Prison Medical Officer, advised the Director of Health Services that the applicant had multiple medical problems of a severe nature. Those problems caused him to have "collapsing episodes" and epileptic seizures. His mitral heart valve was failing and required on‑going specialist monitoring. His stomach and bowels were undergoing investigation. The applicant had a major depressive illness. His entitlement to Medicare had ceased because he was in prison:
"All of his current care has therefore ceased. His only avenue is to arrange new referrals to different specialists within the State public hospital system…The delays involved are likely to be very long and associated with medical deterioration."
Dr Hames said:
"I strongly believe that he should not be imprisoned because his medical care will be compromised."
On 20 June 2000, Professor German advised that:
"In summary, at the present time, this man is in a fairly precarious state of mental health complicated by a much more volatile situation with regard to his epilepsy. Secondly the worsening of these symptoms has been initially triggered by the outcome of his original criminal case, further amplified very substantially by his wife's very serious illness and finally worsened to a more marked degree than I have seen to date by recent political turmoil in his family's home in Fiji."
On 13 July 2000, Professor German advised that in the previous three months the applicant's epileptic phenomena had increased dramatically. He had had three fits in March, approximately four fits in April, five in May, with one of the latter fits being a major fit, and seven in the previous four weeks, three of which had been major fits.
Professor German said:
"I consider that these increasingly frequent and severe epileptic manifestations in the presence of continuing treatment which has previously been effective, result from the massively escalating stresses upon him, including his wife having an aggressively malignant cancer of the breast…."
Professor German said:
"I understand he has a loosened mitral valve which requires urgent assessment and probable surgery and meanwhile it seems likely that an additional factor, stemming from that damaged valve, is diminishing brain blood flow which is a factor leading to increased excitability of brain tissue and an increased potential for epilepsy. Whilst I cannot comment on the implications of his cardiac disorder, it is my opinion that he is a very sick man indeed and is worsening steadily from week to week. His status in custody will be extremely fragile."
On 13 July 2000 Dr Henderson, the Director of Health Services advised:
"Dr Hames is a well respected and capable doctor who works full time in the prison and I am prepared to support his opinion. Imprisonment will have a serious adverse effect on Mr Jogia's health. Mr Jogia has a serious heart condition at present which will require a major operation and the infirmary at Casuarina is not an appropriate place to treat a condition of this severity. Should his heart condition be resolved then his psychiatric condition becomes the next most serious condition and the opinion of his treating psychiatrist and of the physician/cardiologist is that Mr Jogia will be exposed to increased stress if imprisoned. Again the prison infirmary is not the appropriate place to treat a patient with this condition and there is a real risk of suicide if he is imprisoned."
In addition to the medical problems suffered by the applicant, his wife of almost 30 years was diagnosed with breast cancer in February 2000. In March 2000 Mrs Jogia underwent an operation to remove a tumour from her breast as well as some lymph nodes from under her arm. She has been diagnosed as having a 20 to 30 per cent chance of survival after five years. She has deposed that if the applicant is sent to jail she will be largely without support throughout the rest of her treatment which will make her situation extremely difficult.
In Babic (1997) 93 A Crim R 254 at 256, Winneke P said:
"The decision most often cited in Victoria on the reception of evidence of events occurring after sentence in support of an application for leave to appeal is that of the Court of Criminal Appeal in Eliasen (1991) 53 A Crim R 391 … Crockett J, speaking in effect for the Court, endorsed the view taken by the Court of Criminal Appeal of South Australia in Smith that when a sentence is attacked as excessive it is permissible to have regard to events occurring after sentencing for the purpose of showing the true significance of facts which were in existence at the time of sentence. Crockett J went on to endorse also the view taken in Smith that generally speaking ill‑health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk that imprisonment will have a gravely adverse effect on the offender's health."
His Honour also said:
"An anticipation of the view now accepted in Victoria will be found in Bruzzese (unreported) CCA Vic, 8 December 1982), where McInerney J, with the concurrence of the other members of the Court, spoke of an appellate court looking at matters which properly raise questions canvassed before the sentencing Judge and concerning which possibilities have become actualities subsequent to the date of sentence, an approach which the Court of Criminal Appeal was disposed to endorse in Prideaux (1988) 36 A Crim R 114 … Prior [1966] VR 459 was a case where the evidence was of events occurring after sentence but that evidence was relied on as bearing on the applicant's prospects of rehabilitation. That evidence may therefore be said to have thrown light on the circumstances which existed at the time of sentence."
Winneke P said that the correctness of Eliasen (1991) 53 A Crim R 391 had been accepted by the Court of Appeal in Victoria in a number of decisions.
At the conclusion of the hearing of this application on 14 July 2000, the members of the Court were unanimously of the view that because of the deterioration in the applicant's medical condition which had not been anticipated in the information then available to the learned sentencing Judge, and also because of the then undiagnosed but existing condition of Mrs Jogia, the 3 year sentence of the applicant should be suspended for 2 years. Leave to appeal against sentence was granted and the appropriate order was made.

ANDERSON J: I have read in draft the reasons for judgment of Wallwork J. I agree with those reasons and there is nothing I wish to add.