Larkin v NSW DPP

[2007] NSWDC 80

CITATION:	Larkin v NSW DPP [2007] NSWDC 80 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3-4 May 2006 30 June 2006 11 August 2006 13 October 2006
JUDGMENT DATE:	19 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nield DCJ
DECISION:	See paragraph 77
CATCHWORDS:	Criminal law - appeal against conviction and sentence - make false statement on oath contrary to s.330 Crimes Act (NSW) - asserted conflict between Corporations Act (Clth) and Crimes Act (NSW) - whether Corporations Act "covers the field"
LEGISLATION CITED:	Corporations Act 2001 (Cth) Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Bulliman (NSW CCA 25 Feb 1993) R v Aristodemou (NSW CCA 30 June 1994) R v Chapman (NSW CCA 21 May 1998)
PARTIES:	Stephen Michael Larkin NSW DPP
FILE NUMBER(S):	05/12/0390
SOLICITORS:	Mr S. Levitt NSW DPP

JUDGMENT

HIS HONOUR: As to the appeal of Stephen Michael Larkin:

1. The appellant, Stephen Michael Larkin, was summonsed, pursuant to s 596A of the Corporations Act (Commonwealth), to appear before the Deputy Registrar of the Equity Division of the Supreme Court on 14 March 2002 for examination about the affairs of Actwane Pty Ltd. He did not appear upon that day and he was ordered to appear on 15 March 2002.

2. At 7.35 am on 15 March 2002 the appellant left premises at Edgecliff where he had stayed the night. Unbeknown to him, he was under surveillance from when he left the premises at Edgecliff until 2.55 pm that day when he entered the Supreme Court Building in Queen's Square in Sydney.

3. At 4 pm on 15 March 2002 the appellant appeared before Deputy Registrar Wearne to be examined.

4. The examination commenced at 4.05 pm and concluded at about 5 pm. After he had been sworn in, the Deputy Registrar asked the appellant for his name, address and occupation and the appellant replied, giving his name, address and occupation. Then the Deputy Registrar told the appellant the purpose of the examination, that he was required to answer the questions asked of him and that, if he wished to claim privilege in respect of any answer that he gave, he had to say the word "privilege" before the answer. Then the Deputy Registrar asked him if he understood what he had been told and the appellant replied that he understood what he had been told. Then Mr Braham of counsel examined the appellant.

5. During the course of his examination Mr Braham asked the appellant 236 questions and the appellant responded to each of them.

6. Therefore, during the hour from 4.05 pm to about 5 pm the appellant responded to 238 questions; two asked by the Deputy Registrar and 236 asked by Mr Braham.

7. Of the 236 questions asked by Mr Braham, the appellant prefaced the answer to 199 of them with the word "privilege", He used the word "privilege" in his answer to 11 of them, and he did not preface his answer with the word "privilege" or use the word "privilege" in his answer to 28 of them.

8. Of the 28 questions asked by Mr Braham to which the appellant did not preface his answer with the word "privilege" or in which he did not use the word "privilege" in his answer, the first 15 of such questions were the second to the 16th asked by Mr Braham. These questions related to the appellant's movements during the morning of the day, which movements were known to Mr Braham because, as I have said already, the appellant had been under surveillance from when he left the premises at Edgecliff to when he entered the Supreme Court Building.

9. Mr Braham asked the following questions and the appellant gave the following answers:

“Q. If you don't understand or hear any question of mine, please let me know and I will repeat it. Doctor Larkin, could you describe, please, your movements today?

A. My movements today?

Q. Yes, where have you been today?

A. I spent some time with Stewart Levitt, solicitor, this morning, returned to Kurrajong and returned here this afternoon.

Q. Where did you start the day? You didn't wake up in Mr Levitt's office, did you?

A. No.

Q. Where did you spend the night?

A. I spent the night at Edgecliff.

Q. Did you go from there to Mr Levitt's office?

A. Yes.

Q. What time did you leave Mr Levitt's office?

A. 8.15, 8.30, thereabouts.

Q. Did you thereafter drive to Kurrajong?

A. Yes, I stopped off at the Skybar Hotel at Redfern and then went to Kurrajong.

Q. What time did you arrive at Redfern?

A. 9, 9.30.

Q. What time did you leave Redfern?

A. Within an hour of that time.

Q. What time did you arrive at Kurrajong?

A. Evelenish.

Q. What time did you leave Kurrajong?

A. Lunch time. Some time lunch time. I can't remember the time.

Q. Where did you go from Kurrajong?

A. I came here to the court.

Q. Directly to the court?

A. No, I went back for five minutes to Redfern.

Q. And from Redfern did you come here?

A. Yes.

Q. Have you been back to Mr Levitt's office this afternoon?

A. No."

10. The appellant's answers to some of these questions were false.

11. The appellant's movements during the day were; (1) at 7.15 am he left the premises at Edgecliff and he drove his car to the city; (2) about 8.30 am he entered the building in York Street in which the solicitor had his office; (3) about 9.10 am he left the building in York Street and drove to the Skybar in Redfern; (4) at 10.22 am he left the Skybar and drove his car to an Office works shop in Alexandria; (5) at some time thereafter he left the Officeworks shop and drove his car back to the Skybar, arriving there at 11.24 am; (6) at 12.34 pm he left the Skybar to drive his car to Kinko's in Liverpool Street in the city; (7) he left Kinko's at 1.04 pm and drove back to the Skybar; (8) he left the Skybar at 2.02 pm and returned to Kinko's in Liverpool Street, leaving Kinko's shortly afterwards; (9) he entered the Supreme Court Building at 2.55 pm.

12. On 1 March 2003 the appellant was charged with, on 15 March, 2002, making a false statement while on oath, knowing the statement to be false, that statement not amounting to perjury, contrary to s 330 of the Crimes Act. This is an offence which carries a prescribed penalty of imprisonment for a maximum of 5 years when dealt with on indictment or imprisonment of 2 years if dealt with summarily.

13. In due course, on 24 September 2003 a magistrate in the Local Court in the Downing Centre in Sydney fixed 14 November 2003 for the hearing of the charge.

14. On 24 November 2003 the appellant appeared before Magistrate Fleming (as she then was) in the Local Court in the Downing Centre in Sydney for the hearing of the charge. Mr S. Littlemore, QC, instructed by Mr J. Bettens, solicitor, appeared for the appellant. Mr Littlemore applied to Magistrate Fleming to either quash the information upon which the charge was based or permanently stay the prosecution of the charge. After hearing submissions Magistrate Fleming invited the prosecutor, a solicitor of the Office of the Director of Public Prosecutions, and Mr Littlemore to provide written submissions on the appellant's applications and she stood over the hearing to 13 February 2004.

15. Accordingly, on about 9 December 2003 Magistrate Fleming received Mr Littlemore's submissions and on about 16 December 2003 she received the prosecutor's submissions.

16. On 13 February 2004 Magistrate Fleming gave her judgment on the appellant's applications, dismissing both of them and she fixed 14 May 2004 for the hearing of the charge.

17. On 14 May 2004 the appellant appeared again before Magistrate Fleming in the Local Court in the Downing Centre in Sydney for the hearing of the charge. Mr Bettens, solicitor, appeared for the appellant. Mr Bettens applied to Magistrate Fleming that she deal with the appellant pursuant to the provisions of s 32 of the Mental Health (Criminal Procedure) Act. After hearing evidence from Dr T O Clarke, psychiatrist, and submissions from Mr Bettens, Magistrate Fleming declined to deal with the appellant pursuant to that Act and fixed 22 July 2004 for the hearing of the charge.

18. In the course of time, on 10 September 2004 the appellant appeared before Magistrate O'Shane in the Local Court in the Downing Centre in Sydney for the hearing of the charge. Mr Wendler, of counsel, instructed by Mr Bettens, appeared for the appellant. The prosecutor tendered a Statement of Agreed Facts, a transcript of the evidence given before the Deputy Registrar on 15 March 2002, two reports of Dr T O Clark, one dated 19 November 2003 and the other dated 14 April 2004 and a report of Dr C L Wong dated 27 April 2004, all of which were admitted into evidence. Then the prosecutor called Dr Wong to give evidence and he was examined by the prosecutor and cross-examined by Mr Wendler. Then the hearing was stood over to 18 February, 2005.

19. On 18 February 2005 the appellant appeared again before Magistrate O'Shane. Unfortunately, Mr Bettens sought and was granted leave to withdraw from representing the appellant. Thereafter, with the appellant without legal representation, the cross-examination of Dr Wong concluded, after which the proceedings were stood over to 24 February 2005 for judgment.

20. On 24 February 2005 Magistrate O'Shane delivered her judgment. She found the offence to be proved beyond reasonable doubt and she stood over the proceedings to 10 March 2005 for the sentencing of the appellant.

21. On 10 March 2005 Magistrate O'Shane convicted the appellant of the offence and she sentenced him to imprisonment for a period of 18 months, with a non-parole period of 12 periods and a parole period of 6 months.

22. On that day, 10 March 2005, the appellant, being dissatisfied with the finding of Magistrate O'Shane, lodged a Notice of Appeal to this court.

23. On 3 May 2006 the appellant appeared before me for the hearing of his appeal. Ms McSpedden, of counsel, instructed by Mr P Kenny, solicitor, appeared for the appellant. I received the documentary material which had been admitted into evidence before Magistrate O'Shane and the transcript of the evidence given to her, and I heard evidence from Dr Wong, after which I stood over the proceedings to 4 May 2006.

24. On 4 May 2006 I heard evidence from Dr T O Clarke, after which I stood over the proceedings to 30 June 2006. 25. On 30 June 2006 I heard evidence from Dr C Stevenson, psychologist, an expert on the diagnosis of attention deficit hyperactivity disorder and treatment of sufferers of it and then submissions from the Crown Prosecutor and Ms McSpedden, after which I told the Crown Prosecutor and Ms McSpedden that I was satisfied beyond reasonable doubt that the appellant was guilty of the offence and then I stood over the proceedings to 11 August 2006 for judgment and sentencing.

26. On 11 August 2006 the appellant appeared before me for judgment and sentencing. On this occasion, Mr S A Levitt, solicitor, appeared for the appellant, as the appellant had withdrawn his instructions to Ms McSpedden and her instructing solicitor. Mr Levitt applied to re-open the appellant's appeal to submit that the count is unfounded if an offence under section 330 is based on answers asked during examination under the Corporations Act. Notwithstanding that the Crown Prosecutor submitted that I should not allow the appellant to re-open his appeal, particularly as I said on 30 June 2006 that I was satisfied beyond reasonable doubt that he was guilty of the offence, I allowed Mr Levitt to re-open the appellant's appeal and I ordered that Mr Levitt file the appellant's submissions not later than 6 April 2006 and that the Crown Prosecutor file the Crown's submissions by 5 September 2006, and I stood over the appeal for further submissions on 23 October 2006.

27. On 29 August 2006 I received Mr Levitt's submissions and on about 6 September 2006 I received the Crown Prosecutor's submissions. Then, on 1 October 2006 I received Mr Levitt's submissions in reply to the Crown Prosecutor's submissions.

28. On 13 October 2006 the appellant appeared before me for submissions. On this occasion the Crown Prosecutor handed to me her submissions in reply to Mr Levitt's submissions in reply to her earlier submissions. Then, I heard submissions from Mr Levitt and the Crown Prosecutor, after which I invited the Crown Prosecutor and Mr Levitt to submit written submissions as to such penalty I should impose on the appellant if I rejected the appellant's applications to reject the charge and to permanently stay prosecution of the charge.

29. On 30 October 2006 I received the Crown Prosecutor's submissions as to sentence and at some time after 30 October 2006 I received Mr Levitt's submissions dated 11 August 2006 as to sentence in reply to the Crown Prosecutor's submissions. Then, on 19 January 2007 I received a letter dated that day from Mr Levitt adding to his earlier submissions, which prompted a letter dated 22 January 2007 from the Crown Prosecutor commenting upon Mr Levitt's further submissions.

30. Considering, firstly, the question whether the evidence proves beyond reasonable doubt the appellant's commission of the offence with which he had been charged, because, if the appellant's guilt has not been proved by the evidence beyond reasonable doubt, then the appellant is entitled to have the appeal allowed and the charge dismissed, whatever be the decision on the issues raised by Mr Levitt.

31. Thus, the question to be determined is whether the evidence proves beyond reasonable doubt that, when he made the false statements to the Deputy Registrar in answer to the questions asked by Mr Braham during the examination on 15 March 2002, the appellant knew that the statements were false.

32. The prosecution's case is that, when the transcript of the evidence given by the appellant is read, it is obvious that the appellant understood what he had been asked and that he responded appropriately to what he had been asked, albeit that his answers to the questions, referred to above, were false.

33. The appellant's case is that, accepting that his answers to the particular questions are false, his answers were not knowingly, in the sense of deliberately or intentionally, false because, as he is a sufferer of adult attention deficit hyperactivity disorder, he confabulated when answering the questions.

34. I accept that the appellant's false answers to the particular questions could have been; (1) deliberately and intentionally false; (2) a mistake due to a lapse in memory or to a faulty memory; or, (3) due to some other cause, whether psychological or psychiatric or otherwise, such as acquired brain damage.

35. I do not doubt that the appellant is a sufferer from adult attention deficit hyperactivity disorder and that he had been treated for it for some time before 15 March 2002.

36. I have considered the evidence of Dr Wong, Dr Clarke and Dr Stevenson. I note that Dr Stevenson had a report of Dr Barten dated 3 September 2004, which was not put before Magistrate O'Shane or me. I realise that there are differences between the opinions of Dr Wong, Dr Clarke and Dr Stevenson. Frankly, I fail to see how the hypotheses of either Dr Clarke or Dr Stevenson could be elevated to a reasonable possibility in the absence of an explanation by the appellant for his false answers to the particular questions asked by Mr Braham. Also, I doubt, in view of my assessment of other evidence, that I need to prefer one doctor's opinion to that of another doctor. But, having said that, I prefer the opinion of Dr Wong to that of Dr Clarke and Dr Stevenson because, frankly, his opinion accords with logic and common sense.

37. I agree with the Crown Prosecutor that there is nothing to show, or to suggest, that, when he was in court between 4.05 pm and about 5 pm on 15 March 2002 answering the questions asked of him by Mr Braham, the appellant was under any undue stress or that he had taken any medication or that he needed to take any medication.

38. Although I agree with the appellant's former counsel, Ms McSpedden, that the reading of the transcript of evidence will not show the reader whether the witness paused before beginning to answer a question or whether the witness paused during giving an answer to a question, I consider, reading the transcript of the appellant's answers to Mr Braham's questions, that, as the Crown Prosecutor submitted, the appellant appreciated the reason for his examination and he understood the questions that he was asked and he answered those questions with an appropriate response. The facts that the appellant prefaced his answer to 199 of 236 questions with the word "privilege" and that he used word "privilege" in his answer to 11 of the remaining 37 questions shows that he was in control of himself and his answers. Furthermore, the facts that he did not preface his answer with the word "privilege" or use the word "privilege" in his answers to only 28 of 236 questions confirms that he was in control of himself and his answers, particularly as 15 of those 28 questions were not directly related to the affairs of Actwane Pty Ltd.

39. In the absence of an explanation by the appellant for his false answers to the particular questions asked by Mr Braham, I cannot see as a remote possibility that the appellant's answers were due to a lapse of memory or a faulty memory, particularly as the appellant was asked questions shortly after 4.05 pm about his activities during the preceding eight hours, and I cannot accept that he had forgotten what he had done, or that he believed he had done something else.

40. Accordingly, I am satisfied beyond reasonable doubt that the appellant answered the particular questions asked by Mr Braham, and referred to above, falsely, knowing his answers to be false.

41. I am unable to say why the appellant answered the particular questions falsely, because, as I have said already, the appellant has not given evidence as to his reason for answering the questions in the way that he answered them. Perhaps he simply thought that he could say what he liked to questions that he considered not directly related to the affairs of Actwane Pty Ltd.

42. Considering now the question whether the appellant could be found guilty of the subject offence which, as I have said, is an offence contrary to s 330 of the Crimes Act, based upon answers given to questions asked in an examination under s 596A of the Corporations Act.

43. Mr Levitt's first submission is that the questions asked by Mr Braham, upon the answers to which the Crown based the charge against the appellant, should not have been allowed by the Deputy Registrar because they did not relate to the "examinable affairs" of Actwane Pty Ltd.

44. The Crown Prosecutor's reply to Mr Levitt's first submission is that the questions asked by Mr Braham were allowable because; (1) Skybar was a business purchased by Actwane Pty Ltd and within the "examinable affair", of Actwane Pty Ltd; (2) the questions related to the appellant's failure to attend court as required by the summons; and, (3) the questions related to the appellant's credibility.

45. I accept that, as provided for by s 597 (5B) of the Corporations Act, the Deputy Registrar had power to allow only questions about "the corporation", that is Actwane Pty Ltd, or "any of the examinable affairs" of Actwane Pty Ltd to be put by Mr Braham to the appellant during the appellant's examination.

46. I consider that, as Actwane Pty Ltd had purchased the Skybar, and as Actwane Holdings Pty Ltd was registered as the owner of the Skybar, questions about the Skybar were allowable questions about Actwane Pty Ltd and its examinable affairs.

47. As I do not know Mr Braham's reason for asking the particular questions of the appellant, I cannot say that the questions were "fishing" questions or that they were related to the appellant's failure to attend court as required by the summons or to his credibility. It may well be that Mr Braham was laying the foundation for a particular line of questions which, as the examination of the appellant unfolded, did not need to be asked.

48. I accept that, whether or not Mr Braham knew the movements of the appellant during the morning of 15 March 2002, and I note that the Crown Prosecutor has conceded in her submissions received on 1 October 2006 that Mr Braham knew the appellant's movements, the questions asked by Mr Braham of the appellant were allowable questions about Actwane Pty Ltd or its examinable affairs.

49. I also accept that, whatever was Mr Braham's reason for asking the questions of the appellant, the questions were allowable as they related to the appellant's credibility. However, I consider that, if the questions related only to the appellant's failure to attend court as required by the summons, then the questions would not have been related to Actwane Pty Ltd or its examinable affairs or to the appellant's credibility and, therefore, they would not have been allowable.

50. But, I do not overlook the obvious that, whether or not the questions were allowable, the appellant was a witness in court and he was on his oath and he was asked questions and he answered the questions and he gave false answers and, as I have found, he knew that his answers were false when giving them.

51. Mr Levitt's second submission is that, as s 1311 of the Corporations Act creates the offence of making a statement which is false or misleading in a material particular contrary to s 597 (7) (c) of the Act, for which the prescribed penalty is imprisonment for a maximum of two years or a fine of a maximum of $11,000, or both, the appellant cannot be charged with or, if charged, found guilty of an offence contrary to s 330 of the Crimes Act as the Corporations Act "covers the field".

52. Mr Levitt's submission, although these are not his words, is that, if the appellant's conduct is dealt with in different ways by Commonwealth and State Acts, then, by s109 of the Commonwealth Constitution, the Commonwealth Act overrides the State Act and the State Act, to the extent of its inconsistency, is invalid.

53. The Crown Prosecutor's reply to Mr Levitt's second submission is that the Corporations Act provides by s5E(1) that it, the Act, does not exclude or limit the concurrent operation of any law of a state or territory, and by subs(5) that, if an act is both an offence against the Corporations Act and an offence against the law of a state or territory and a person is convicted of either of these offences, then the person is not liable to be convicted of the other of those offences.

54. In my opinion the Corporations Act contemplates that there might be a law of a state or territory which has concurrent operation with the Corporations Act, and recognises that an act which is contrary to the Corporations Act may also be contrary to a law of a state or territory and that the person committing the act may be prosecuted under the Corporations Act or the concurrent law of the state or territory. Accordingly, I am of the opinion that the Corporations Act was not intended to and does not "cover the field" and that, in any event, s330 of the Crimes Act is not inconsistent with s597(7) of the Corporations Act.

55. The offence contrary to s597(7) of the Corporations Act which is created by s1311(1)(a) of the Act occurs when a person being examined under either s596A or s596B of the Act makes a statement that is false or misleading in a material particular. As Mr Levitt pointed out, criminal liability for a false or misleading statement made by a person during an examination under either s596A or s596B of the Act arises if the statement is false or misleading in a material particular, that is, material to be the purpose of the examination.

56. The offence contrary to s330 of the Crimes Act occurs when a person makes on oath a false statement, not amounting to perjury, knowing the statement to be false or not believing it to be true. As the Crown Prosecutor pointed out, there is a clear distinction between an offence of making a false statement contrary to s330 of the Crimes Act and the offence of perjury contrary to s327 of that Act, which occurs when a person in or in connection with judicial proceedings makes a statement on oath concerning any matter which is material to the proceedings knowing the statement to be false or not believing it to be true, which is an offence similar to the offence contrary to s597(7) of the Corporations Act.

57. In my opinion the appellant could have been charged with an offence contrary to s597(7) of the Corporations Act as the false answers related to Actwane Pty Limited or to its examinable affairs, or an offence contrary to s327 of the Crimes Act as the false answers were material to the proceedings, or, as he was charged, an offence contrary to s330 of the Crimes Act. I consider that it was a decision for the prosecutor to make as to whether to proceed with a charge under s597(7) of the Corporations Act or under either s327 or s330 of the Crimes Act.

58. As I have said already, I am of the opinion that s330 of the Crimes Act is not inconsistent with s597(7) of the Corporations Act. This is because s597(7) of the Corporations Act applies to a statement which is false or misleading in a material particular whereas s330 of the Crimes Act applies to a false statement made on oath. The elements of an offence contrary to s597(7) of the Corporations Act are different from the elements of an offence contrary to s330 of the Crimes Act. In my opinion the offences can and do stand side by side.

59. Mr Levitt's third submission is that the prosecution of the appellant upon the charge brought against him should be stayed because it would be an abuse of the Court's process to permit the appellant to be prosecuted for a false answer given to a Deputy Registrar during an examination under s596A of the Corporations Act.

60. I have found Mr Levitt's submission as to a stay of prosecution based upon an abuse of the Court's process difficult to understand. I assume that Mr Levitt means that, because the appellant was required to attend court for examination about Actwane Pty Limited and its examinable affairs, and because concurrent proceedings by the receiver of Actwane Pty Limited to rectify the ownership of a Skybar were on foot, and because Mr Braham, when he asked the particular questions of the appellant, knew the correct answers to the questions, and because the appellant's answers to the questions asked by him went to his credibility, as well as to the affairs of Actwane Pty Limited, and because the questions were asked to obtain evidence for a concurrent rectification proceedings or to base a future prosecution of the appellant, to permit the prosecution of the appellant to continue would bring the administration of justice into disrepute.

61. The Crown Prosecutor's reply to Mr Levitt's third submission is that there is nothing to suggest that the prosecution of the appellant is illegal or unjustified, or oppressive or unfair, or for an illegitimate purpose such as to bring the judicial process into disrepute.

62. Accepting that there were concurrent proceedings by the receiver of Actwane Pty Limited to rectify the ownership of the Skybar, and accepting that Mr Braham knew the movements of the appellant of the morning of 15 March 2002 and, therefore, that he knew the correct answers to his questions, and accepting that the appellant's answers to the questions asked of him by Mr Braham may have been used in the concurrent proceedings does not mean that the questions were asked to trap the appellant or to base a prosecution of him. If he had answered the questions honestly, and Mr Braham did not know whether he would answer the questions honestly, he would not have created any problem for himself and he would not have been prosecuted.

63. I cannot see any proper basis upon which the prosecution of the appellant should be stayed. There is nothing to suggest any impropriety on the part of the prosecutor or the prosecuting authority, and there is nothing to suggest that the prosecution was unfair or an abuse of the Court's process.

64. In the result I am satisfied, as I have said already, that the appellant's answers to the particular questions asked of him by Mr Braham were false, and they were given by him knowing them to be false. Accordingly, I find the appellant to be guilty of the offence with which he was charged, and I convict him of that offence.

65. I consider now the sentence to be imposed on the appellant for the offence.

66. As I have said already, the offence of making a false statement on oath knowing the statement to be false is an offence contrary to s330 of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of five years when dealt with on indictment, or imprisonment for a maximum of two years if dealt with summarily.

67. On 10 March 2005 Magistrate 0'Shane sentenced the appellant to imprisonment for the period of 18 months, with a non-parole period of 12 months and a parole period of six months, although she did not give any reasons for that sentence or for departing from the statutory ratio between the non-parole period and the parole period.

68. As to the objective seriousness of the offence, I consider that it is beyond argument that lying when giving evidence on oath in a court is very serious, with the degree of seriousness depending upon the materiality of the lie, and that, except in exceptional circumstances, a sentence of imprisonment is the only appropriate sentence to be imposed upon a witness who lies when giving evidence on oath in a court: See R v Bulliman 25 February 1993 unreported; R v Aristodemou 30 June 1994 unreported; R v Chapman 21 May 1998 unreported. As to the appellant's false answers I see them as falling towards the low end of the range of seriousness for an offence of their kind.

69. As to the subjective features relating to the appellant: He was born on 17 January 1940. Accordingly, he was aged 62 years and two months when he committed the offence and he is aged 67 years three months now. He was educated at primary and secondary schools in the Newcastle area. He attended Sydney University and obtained a degree in Veterinary Science. He practised as a veterinary surgeon in the Eastern Suburbs of Sydney from 1964 to 1982. He married during 1978 and he and his wife are the parents of two children. He operated as a property developer from 1982 until he was declared bankrupt during 1991. He was discharged from bankruptcy during 1994, and he resumed his operations as a property developer until he was again declared bankrupt during 2003. He and his wife separated during 2002 and their marriage was dissolved during 2003. He blames the stresses related to his property development operations and to his subsequent bankruptcy for his wife's estrangement from him. He was discharged from his second bankruptcy during 2006. He does not own any property or have any assets. He is in receipt of a pension. He enjoys good physical health but, as I have said already, he suffers from adult attention deficit hyperactivity disorder, for which he takes prescribed medicine. He has an unblemished character, albeit I know that it has transpired that he has pleaded guilty to a number of offences related to his misuse of the money of Actwane Pty Ltd, for which he is to appear in this Court during April 2007 for sentencing.

70. In determining an appropriate sentence to impose upon the appellant for the offence I must recognise the purposes of sentencing referred to in s3A of the Crimes (Sentencing Procedure) Act, and I must take into account such of the aggravating factors referred to in s21A(2) of the Act as are present, and such are the mitigating factors referred to in subs (3) of that section as are present, and any other relevant factor.

71. As to s21 A of the Crimes (Sentencing Procedure) Act I consider that none of the aggravating factors referred to in subs (2) is present, and that the mitigating factors present are those referred to in paragraphs lettered (e), (f), and (h) of subs (3).

72. One factor not mentioned in s21 A of the Crimes (Sentencing Procedure) Act is deterrence. Although personal deterrence may not be as important in this case as it might be in another case, general deterrence is important and cannot be overlooked or undervalued as lying when giving evidence on oath strikes at the foundation of the judicial system and undermines it. Witnesses, whether giving evidence in a trial or a civil hearing, or before a Deputy Registrar during an examination of a company's affairs, or a commissioner of the ICAC or the ACC, must be deterred from lying by knowing that lying will be punished by a sentence of imprisonment.

73. What, then, having regard to what I have said about the offence and the appellant is an appropriate sentence to impose upon the appellant for that offence?

74. Mr Levitt and the Crown Prosecutor have made submissions as to sentence, and they are have referred me to many cases. I have considered their submissions and I have read the cases. I did not see any need to refer specifically to those submissions or the cases.

75. I have determined, balancing the purposes of sentencing, the objective seriousness of the offence, the subjective features of the offender, the mitigating factors referred to and deterrence, that the sentence should be imprisonment for 12 months, and that, in view of the appellant's age, his previous character and his state of health, the non-parole period and the parole period should each be six months.

76. As to whether execution of the sentence should be suspended or whether, if execution is not suspended, the sentence should be served on a full-time or periodic detention basis, I have decided that, because of the appellant's age, his previous character, the fact that he had never served a prison sentence, and the passage of time between 15 March 2002 and today, execution of the sentence should be suspended for the period of it.

77. Accordingly, I dismiss the appellant's appeal. I confirm the magistrate's conviction. I set aside the magistrate's sentence. I sentence the appellant to imprisonment for 12 months. I fix a non-parole period in parole period each of six months. I suspend execution of the sentence, pursuant to s12 of the Crimes (Sentencing Procedure) Act, for the period of it, conditionally upon the appellant entering into a bond to be of good behaviour for the period of the sentence and to appear for sentence if called upon for any breach of the bond.

*************

06/07/2007 - In paragraph 8 after the word "second" delete the words and numerals "of the 15 questions" and insert the words and numerals "to the 16th". - Paragraph(s) 8