McClelland v The Queen - [2001] WASCA 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MCCLELLAND -v- THE QUEEN [2001] WASCA 73

CORAM: MALCOLM CJ
WALLWORK J
ANDERSON J

HEARD: 8 MARCH 2001

DELIVERED : 8 MARCH 2001

FILE NO/S: CCA 254 of 2000

BETWEEN: BRADLEY SCOTT MCCLELLAND
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Judgment and punishment - Perjury - Appellant charged with driving offence - Appellant gave false evidence in Court of Petty Sessions that B was driver and procured B to give false evidence to the same effect - Sentence of imprisonment for 3 years reduced to 2 years.

Legislation:

Nil

Result:

Application for leave to appeal granted and appeal allowed

Representation:

Counsel:

Appellant: Mr G J Huggins
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Gary Huggins
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Pyburne v The Queen, unreported; CCA SCt of WA; Library No 930394; 13 May 1993

MALCOLM CJ: The court is unanimously of the opinion that in this case the appellant should be granted leave to appeal against the sentence which was imposed upon him of 3 years' imprisonment in respect of the offence and that that sentence should be reduced to one of 2 years' imprisonment. The appellant was convicted on his plea of guilty to the offence of perjury.
The facts were that prior to October 1999 the appellant had accumulated a traffic record, he had reached the limit so far as his demerit points were concerned, and his licence was suspended in 1996. While his licence was suspended he drove the motor vehicle and committed the offence of driving while under suspension. In respect of that he received a cumulative disqualification of his licence and was fined in the Court of Petty Sessions.
Subsequently, he again drove while under suspension and received another cumulative period of suspension of his driver's licence and a penalty by way of a fine. In 1998 the appellant committed a third offence of driving while under suspension and for that he was sentenced to imprisonment for 6 months, which sentence was suspended. Yet again the appellant was charged with driving while under suspension. On that occasion he pleaded not guilty.
As the learned sentencing Judge said, that step was taken because the appellant faced imprisonment if he was convicted. He got together with his best friend, a Mr Bunt, and persuaded Bunt to give false evidence to say that he was the driver of the vehicle at the time, not the appellant. The appellant appeared in the Court of Petty Sessions in answer to the charge on 6 October 1999 and gave evidence that he had not been the driver of the vehicle.
He was cross‑examined about that and maintained the lie on oath. Mr Bunt then gave evidence for the defence. In his evidence‑in‑chief he testified that he had been the driver of the vehicle at the time. However, during cross‑examination he retracted that evidence and admitted that the appellant had been the driver of the vehicle.
As a result, the appellant was convicted of his fourth offence of driving under suspension and was sentenced to imprisonment for 8 months. The learned Magistrate, quite rightly, referred the matter of the perjury to the Director of Public Prosecutions and consequently the appellant appeared and pleaded guilty to the charge.
At the time he came before the learned sentencing Judge for sentence, the appellant was aged 26 and single. He had a good work record as an upholsterer and, more recently, as a plasterer's labourer. The learned sentencing Judge noted that apart from the traffic record, which was not a good one, it was accepted that the appellant was generally regarded as a person of good character.
There were a number of references before the Court from former employers and others who spoke highly of him. The learned Judge also had the benefit of a pre‑sentence report that was favourable in the sense that it stated that the appellant had remained offence free since his release from prison in December 1999 and did not present as a person who was a major risk of reoffending. In passing sentence, the learned sentencing Judge said:
"The problem for you though is the offence of perjury is regarded very seriously by the law and the Court of Criminal Appeal in this state has on a number of decisions indicated that offences of this type almost inevitably require a term of imprisonment to be served immediately, and in particular there is a decision of the Court of Criminal Appeal, Pyburne v R, being an unreported decision number 930394, where the Court stated:
'It has often been said that perjurers are not easily brought to justice and when they are they must be punished. Almost inevitably a conviction for perjury carries an immediate sentence of imprisonment. The reason for this is that perjury undermines the whole basis of the administration of justice.'
There is no doubt that perjury is regarded seriously for that reason. It carries a maximum of 14 years' imprisonment. Not only do you undermine the system of justice but you undermine the system of road traffic licences whereby licences are suspended for errant drivers and if it was easy for people to get away with driving under suspension and giving false evidence in court to overcome the problems that they face, then the whole system of drivers' licensing would break down. Also, of course, it is a fact that it is difficult as a rule to detect perjury and there is a need for general deterrence.
For those reasons, it is inevitable today that I must impose a term of imprisonment. It is submitted that that term of imprisonment should be suspended, but in my view the offence is of such seriousness that it is one which calls for a term of imprisonment to be served immediately. Ordinarily, I think you could have expected a term of at least 4 years' imprisonment but having regard to your plea of guilty and your past good character, your traffic record aside, I think I should reduce that to 3 years' imprisonment, so I am sentencing you to 3 years' imprisonment to be served immediately and you are going to be eligible for parole."
The application for leave to appeal against sentence in this case was made on the single ground that the learned sentencing Judge erred in the exercise of his discretion in that he imposed a sentence which was manifestly excessive having regard to the antecedents and personal circumstances of the accused and to the circumstances of the case generally.
Further and better particulars which were filed on 20 February 2001 elaborate the grounds to the extent that it is contended first that insufficient consideration was given to the principles of parity in that the sentence imposed upon the appellant was far greater than that imposed upon his co‑accused; secondly, it is contended that the term of imprisonment for 3 years imposed upon the appellant for the offence of perjury was in the upper end of the range for offences of this type having regard to the antecedents and personal circumstances of the accused and the circumstances of the case generally.
While there has been some debate about the precise meaning and thrust of that second particular, I must say I read it as has been confirmed by counsel for the appellant, that it was being contended that a sentence of imprisonment for 3 years for the offence of perjury was in the upper end of the range for offences of perjury as distinct from offences of perjury which were committed in the Court of Petty Sessions in the context of a case of a kind which we have before us today.
Of course perjury is a very serious offence, as the maximum penalty of imprisonment for 14 years indicates, but the consequences do vary and it needs to be recognised that while perjury is a very serious offence, the consequences in relation to the impact of the perjury upon the administration of justice have to be evaluated in their particular context. Naturally a deterrent sentence was required.

While this is not a case in which parity plays any major part, it does have a small part to play. When all the circumstances are taken into account, I am of the opinion that the starting point in this case, of a sentence of imprisonment for 4 years, was too high. In my view, the appropriate starting point would have been 3 years, and having regard to the plea of guilty and all of the other matters which could be taken into account in favour of the appellant, I would reduce the sentence of 3 years which was imposed to a sentence of 2 years.
WALLWORK J: I agree with the reasons for judgment of the learned Chief Justice and to the order proposed by his Honour. There is nothing I wish to add.
ANDERSON J: I also agree and there is nothing I wish to add.