Norton v The State of Western Australia - [2007] WASCA 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NORTON -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 75

CORAM: STEYTLER P
WHEELER JA
BUSS JA

HEARD: 13 MARCH 2007

DELIVERED : 10 APRIL 2007

FILE NO/S: CACR 158 of 2006

BETWEEN: MICHELLE WENDY NORTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HEALY DCJ
File No  :IND 1382 of 2006

Catchwords:

Criminal law - Appeal against sentence - Attempting to pervert the course of justice - Insurance fraud - Whether sentence manifestly excessive - Whether terms of imprisonment should be suspended - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 6(4), s 39(2), s 39(3), s 76(1), s 76(2), s 76(3)(b)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Appeal against sentence on count 1 dismissed
Appeal against sentence on count 2 allowed
Appellant re-sentenced on count 2

Category: A

Representation:

Counsel:

Appellant: Ms L B Black
Respondent: Mr S Vandongen

Solicitors:

Appellant: Ms L B Black
Respondent: State Director of Public Prosecutions

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

Anderson v The Queen (1996) 18 WAR 244
Chan (1989) 38 A Crim R 337
Connell v The Queen, unreported; CCA SCt of WA; Library No 940731; 22 December 1994
Dinsdale v The Queen (2000) 202 CLR 321
Goulding (1991) 56 A Crim R 75
Hatty v Pilkinton (No 2) (1992) 35 FCR 433
Higgins and Bejawn v The Queen, unreported; CCA SCt of WA; Library No 8382; 25 July 1990
House v The King (1936) 55 CLR 499
Hunter v The Queen, unreported; CCA SCt of WA; Library No 8990; 7 August 1991
Jeffery v The Queen, unreported; CCA SCt of WA; Library No 920357; 3 June 1992
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2005) 79 ALJR 1048
Miller v The State of Western Australia [2006] WASCA 163
N v The State of Western Australia [2006] WASCA 276
Pearce v The Queen (1998) 194 CLR 610
R v Liddington (1997) 18 WAR 394
R v Rogerson (1992) 174 CLR 268
Ranford v The State of Western Australia (No 2) [2006] WASCA 243
Rauhina v The Queen [2002] WASCA 91
The State of Western Australia v Skaines [2006] WASCA 160
Vagh v The State of Western Australia [2007] WASCA 17
Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992

STEYTLER P: I agree with Buss JA.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. It is not necessary for me to repeat the summary of the facts which his Honour has set out in his reasons. I agree with his Honour's conclusion in relation to the count of fraud, save that, for reasons I later give, I would suspend that term. However, for the reasons which I now set out, I am of the view that the learned sentencing Judge was in error in imposing the sentence which he did in respect of the attempt to pervert the course of justice.
There is no tariff for the offence of attempting to pervert the course of justice. However, it is important in every case to give appropriate weight to the statutory maximum penalty, recognising that it is reserved for cases falling within the worst category of offences of the kind, and to ensure that the sentence imposed in a particular case is broadly consistent with sentences imposed in like cases. That aim of consistency dictates also that, generally speaking, it is inappropriate to impose on one offender a sentence of the kind generally imposed on offenders whose culpability is significantly greater. It also dictates that in sentencing offenders whose culpability is broadly similar, it will, in appropriate circumstances, be necessary to impose different sentences where the personal circumstances of those offenders are significantly different.
Turning to apply those principles in the present case, the first thing that should be noted is that the statutory maximum penalty for this offence is 7 years' imprisonment. The effect of the transitional provisions is such that the statutory maximum should now be regarded as 4 years and 8 months' imprisonment. However, because the authorities to which I shortly turn are authorities which pre‑date the transitional provisions, it is desirable for the moment to speak in terms of the sentences appropriate prior to the application of the transitional provisions. For the purposes of comparison, I would note that the sentence imposed upon the appellant would equate to one of 2 years and 3 months prior to the application of the transitional provisions. Assuming that a sentencing discount towards the lower end of the range appropriate to a plea of guilty was given to the appellant, his Honour must have considered that her culpability was such that a term of at least 3 years' imprisonment prior to the application of the transitional provisions, and without allowing for her plea, would have been appropriate.
I would observe in passing that his Honour did not articulate the sentence which he would have considered appropriate, prior to the

transitional provisions. While it is not an error in sentencing to omit express reference to the term which would have been imposed, there is a danger that, in all but the most routine case, a sentencing Judge will be unconsciously influenced by standards of sentencing which would have been appropriate prior to those transitional provisions (see Miller v The State of Western Australia [2006] WASCA 163).

As has been noted in other cases, the offence of attempting to pervert the course of justice can be committed in a wide range of circumstances (R v Rogerson (1992) 174 CLR 268, at 280 per Brennan and Toohey JJ, Hatty v Pilkinton (No 2) (1992) 35 FCR 433, at 438 per Black CJ). The sorts of cases which may fall into the most serious category are very varied, but could include, for example, a concerted campaign of serious and credible threats to witnesses, or endeavours to bribe them, in relation to offences of a serious nature, tampering with evidence in such cases in an attempt either to shield the guilty or convict the innocent, endeavours to bribe or intimidate a person to plead guilty to an offence which they have not committed, and so on.
Turning to examples of more serious types of cases which have been considered in this State, and the penalties which have been considered appropriate to them, examples of those types of cases appear to me to include Connell v The Queen (unreported; CCA SCt of WA; Library No 940731; 22 December 1994, at 356 and following) and Rauhina v The Queen [2002] WASCA 91. Connell received a sentence of 5 years' imprisonment, following trial, for the offence of conspiracy to pervert the course of justice. His was, as the Court noted, no mere attempt. Rather, he was the instigator of a deliberate, prolonged, persistent and largely successful attempt to prevent a police investigation. He did so by assisting the principal witness to leave and to remain out of the country for a number of years, paying the witness's travel expenses during that period. He not only instigated and funded that conduct, but he involved many others in it, including his own employees. There was, however, no violence or threat of violence and the principal witness was a willing participant. In Rauhina, the appellant was sentenced to 3 years' imprisonment, again after trial, for an attempt to defeat the course of justice. Broadly, that appellant had engaged in sustained unlawful conduct against the complainant, including assaulting him. He threatened the complainant that if he contacted the police, the appellant would kill him. The complainant did contact police. The conduct the subject of the offence of attempting to defeat the course of justice related to three telephone conversations between the appellant and the complainant, in at least one of which the appellant threatened the complainant with violence if he did not withdraw the charges. Having regard to his conduct against the complainant, the threat was plainly a credible one. Further, the appellant had previous convictions for breach of a violence restraining order and for assault.
As noted earlier, the sentence imposed on the present appellant suggests that the learned sentencing Judge took the view that, before allowing for her plea of guilty, her culpability and her personal circumstances warranted a sentence equivalent to 3 years - that is, one equivalent to Rauhina's. Unless Rauhina's sentence is characterised as manifestly inadequate, the comparison at once raises a question about the appropriateness of that imposed on this appellant.
In the recent decision of Ranford v The State of Western Australia (No 2) [2006] WASCA 243, Roberts‑Smith JA reviewed a number of cases involving attempts to pervert the course of justice. Most involved the giving of a false name, in a variety of circumstances, but it does not seem to me that this is a feature which necessarily distinguishes them from the appellant's case. Unless the offence progresses to the point where the Court itself is deceived (a circumstance which has been held to be aggravating), it does not seem to me that the nature of the untruth involved in the offence (ie whether it is a lie about the identity of a person, or about the occurrence of an event) is a basis for distinction. Rather, cases may be distinguished based upon the circumstances to which Roberts‑Smith JA referred in Ranford, at [36], which include the degree of premeditation, if any, the period of time over which the deception occurred, whether it was repeated, the nature and seriousness of the consequences sought to be avoided (or obtained), and so on.
Within the range of offences reviewed by Roberts‑Smith JA there are a number which seem to me to fall towards the middle of the range of seriousness. In each case, the sentence mentioned was imposed prior to the transitional provisions, and I refer to the equivalent "post transitional" sentence in brackets. In Higgins and Bejawn v The Queen (unreported; CCA SCt of WA; Library No 8382; 25 July 1990), the two applicants had pleaded guilty to an attempt to defeat the course of justice by concealing the true identity of the owner of a quantity of cannabis. The applicants were all in a motor vehicle which, to their knowledge, contained some 285 grams of cannabis. The cannabis was for the use of all of them, although the learned sentencing Judge concluded that it was likely that some would, in due course, be sold when they reached their destination. When the vehicle was stopped by police regarding a minor traffic matter, one applicant gave a false name which he knew to be the name of an actual person. All the men in the vehicle entered into an agreement that one of them would "take responsibility" for the cannabis, but would do so under a false name. It was not clear whether that name was the name of a real person. The accounts of each of the men supported that given by others, so that police were put to a considerable amount of trouble investigating, interviewing and reinterviewing them. They were, however, very young and of previous good character. Two members of the Court of Criminal Appeal agreed with the sentencing Judge's evaluation that it was a case "falling between the middle and top of the scale of the statutory punishment" and for that reason refused to interfere with the sentence of 17 months' imprisonment (just under 11½ months post transitional). The serious features appear to have been the premeditation involved in the making of the agreement, the persistence in its execution, the wasted resources involved, and the object of preventing the prosecution of the true owner of a significant quantity of cannabis.
In Goulding (1991) 56 A Crim R 75, the applicant was a passenger in a vehicle driven by her boyfriend when it was involved in an accident. He had no licence, being suspended for life from holding or obtaining one. After some discussion with him, some time after the accident, she agreed to make a false report to police, naming herself as the driver and fabricating an account of how the other driver had mistakenly identified her boyfriend. She persisted in that account when she attended at the traffic branch, notwithstanding that the police officer there explained to her that police information was to the contrary and that she could be charged with conspiracy if she was lying. She gave a detailed false account in an accident report form. She later adhered to her false story when interviewed again. She admitted the offence only when her boyfriend had confessed to it. There was, in that case, a premeditated and persistent false account for the purpose of shielding a driver who was under suspension for life (and whose driving, one might reasonably assume, presented some danger to the community). She was sentenced to 12 months' imprisonment (8 months post transitional).
In Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992, the appellant was detected shoplifting. She gave a false name and address, that being the name and address shown on a driver's licence which she had previously stolen from a friend, and which she produced to support the false details. She took part in a police interview under that name, received a summons in that name and, finally, went to court, pleaded guilty to stealing, and was fined in the false name. She further made arrangements to perform community work, again in the name of her friend, as a result of being sentenced. There was a further offence of giving a different false name to police when stopped in relation to a speeding offence and receiving an infringement notice in that name. In relation to that second matter, however, she had confessed to the offence prior to its detection. So far as the shoplifting‑related offence was concerned, there were plainly very serious features, including the degree of persistence, the fact that the Court was misled, and the potentially serious consequences for the wholly innocent friend, not only in having a criminal conviction recorded against her name, but in being potentially subject to further consequences if the applicant had failed to perform the community service.
The substantial mitigating factor in Wright appears to have been that the applicant had, at the time at which the offence was committed, been going through a difficult period in her life, since she had been separated from her husband and had, since that time, had some difficulty controlling her alcohol use. She was the mother of three children, and her 12‑year‑old daughter was living with and being supported by her. Following her imprisonment, it was necessary for that daughter to go and live with the applicant's mother, who was 64 years of age and apparently did not cope well. The child had been seriously affected by her mother's imprisonment. Her total effective sentence was one of 18 months' imprisonment (12 months post transitional). As to the personal circumstances, there are some parallels with the present case, in which the appellant is the mother of a 6‑year‑old child. Little is known about the consequences for the present appellant's child, but that is largely because she was so ashamed of her offending that she did not inform her parents of her offence until warned by the learned sentencing Judge that she must make arrangements for the child in the light of her impending imprisonment. Plainly, the culpability in Wright's case was greater.
Without reviewing them, I would simply note that the remaining cases referred to by Roberts‑Smith JA in Ranford, or which are mentioned in the cases which his Honour reviewed in that case, support the conclusion that the giving of a false name to avoid the consequences of offending, in the general run of cases, will ordinarily attract imprisonment, although other dispositions are open. Where imprisonment is imposed, sentences prior to the transitional provisions have ranged from around 6 to 17 months (being 4 to 11 months after 31 August 2003), even where the conduct is repeated in circumstances such as entering into a false bail recognisance (Jeffery v The Queen, unreported; CCA SCt of WA; Library No 920357; 3 June 1992: 12 months' imprisonment), or is persisted in for insurance or related purposes (Hunter v The Queen, unreported; CCA SCt of WA; Library No 8990; 7 August 1991: 6 months' imprisonment).
Turning to the circumstances of the appellant's offence, it is plainly not in the worst category of cases. It is, in some respects, less serious than those "middle" category cases which I have reviewed. It seems to me that it could appropriately be characterised as falling towards the top of the range of seriousness of the "false name" type of cases considered by Roberts‑Smith JA. My reasons for regarding the appellant's culpability in that way stem from a combination of the following factors:
•The appellant was not the instigator of the offence. There is no suggestion that she would have committed such an offence had it not been for the suggestion made by the juvenile co‑offender.
•All of the appellant's acts relating to the offence occurred over a period of one week.
•The appellant's aim was to gain a benefit rather than, as is more often the case, to avoid a detriment to herself or to some other person. However, that benefit was, as Buss JA points out, towards the lower end of the scale of insurance frauds.
•There were two distinct acts of deception, in the making of the original report to police and in the signing of the statement. However, there is nothing to suggest that the statement was anything more than a repetition of the original report.
•Although there were co‑offenders, the appellant was not, as I have pointed out, the instigator of the offence, and there was no involvement of, or consequences for, an innocent victim (leaving aside the insurance company, which was the victim of the fraud which forms the second offence).
•The diversion of police resources appears to have been limited.
It appears that the learned sentencing Judge considered the involvement of the co‑offender who drove the vehicle to have been aggravating. He noted that the appellant signed her statement knowing that she was allowing him to go to trial and face the possible consequence of imprisonment if found guilty of the theft. His Honour also said:
"The co‑offender has suffered consequences of being involved with you. He was a much younger person than you, or younger person than you, and in addition to other sentences that he was sentenced to for other offences he has had to do 4 months' imprisonment in relation to this offence."
With respect, I cannot accept that characterisation of the events. It always lay in the co‑offender's hands to reveal to the police the true nature of his involvement, so that it was his own silence on the subject, as well as the appellant's, which led to the charge against him in relation to the theft progressing as far as it did. Further, one can readily see how both the co‑offender and the appellant might have thought that it would be of little assistance to the co‑offender for either of them to reveal that he had been guilty, not of the offence of stealing, but of counselling the appellant to defraud her insurer. Since the juvenile co‑offender was the instigator of the offence, it might more accurately be said that both the appellant and the driver had suffered the consequences of being involved with him.
Further, although it appears that he was sentenced for additional offences, so that considerations of totality may have been relevant, and although he was younger than the appellant (apparently aged 20), there is a very significant disparity between the sentence imposed on the driver co‑offender in relation to this course of conduct (for the offence of fraud), and that imposed upon the appellant. Parity was not raised as a ground of appeal, nor would that have been appropriate, having regard to the different ages and roles of the appellant and the co‑offender, but the fact that the co‑offender did receive a very much lesser sentence is something to be taken into account. I note that the antecedent report suggests that the four months he received was made concurrent with other sentences, which accentuates the disparity. The juvenile co‑offender received a good behaviour bond, and a $400 fine, for his offence of attempting to pervert the course of justice.

For the reasons given above, it appears to me that the sentence imposed on the appellant was disproportionate to the criminality involved in the offence. When account is taken of her personal circumstances, it appears to me that the sentence is manifestly excessive.
The relevant personal circumstances appear to me to be these. The appellant was plainly in financial difficulties. She was a single mother of a young child, having difficulty in obtaining maintenance, which was apparently paid only sporadically, by the child's father. She was endeavouring to overcome these financial difficulties in a number of entirely appropriate ways. She was employed part‑time as a child care worker and did relief work as a teacher's aide, working approximately "full‑time" hours between these two jobs. She had borrowed money from her parents. Nevertheless, her financial position had deteriorated to the point where she was taking steps to sell her motor vehicle. It was in that difficult position that she succumbed to temptation held out by the co‑offender.
The appellant has led an apparently blameless life for 26 years prior to these offences and there is nothing in her background to suggest that she is ever likely to offend in this way again. The consequences for her and for her child of her offending are likely to be serious. A police clearance is required for work both as a child care worker and as a teacher's aide, so that it is not likely that she will be employed in either of those capacities in the future. Indeed, having regard to the nature of her offending, it is likely that she will face considerable difficulties in obtaining most forms of employment in the future. While it might be said that many offenders are, by virtue of conviction, likely to face difficulties in obtaining employment, this appellant falls into that relatively small category of offenders who have shown a desire and an ability to engage in lawful employment and for whom, therefore, future unemployability may be seen as a more significant and immediate deterrent.
When confronted with her co‑offender's confession, the appellant did not attempt to discredit him, but promptly confessed. Her shame and remorse are vividly demonstrated by the fact that she could not inform her parents of her offending at any time prior to her conviction. Finally, there is the circumstance that she was, prior to her conviction, the sole carer of a 6‑year‑old child. Separation from a child of that age means that imprisonment will bear more harshly on the appellant than it would on many other offenders. So far as the child is concerned, for the reasons noted earlier, little is known about the actual effects on the child. However, the learned sentencing Judge was informed that the child had only ever spent two nights with his grandparents before. While they apparently have a good relationship with the child, it is obvious that the discontinuity in care resulting from her imprisonment is undesirable, and that is a relevant factor (see Wright v The Queen (supra)).

Since, in my view, the Court's discretion to resentence the appellant is enlivened, it is not necessary to consider whether his Honour erred in failing to suspend the term imposed. I would resentence the appellant in the following way. I would impose concurrent 12‑month terms in respect of each offence. In relation to the question of suspension, I acknowledge that the offence of attempting to pervert the course of justice is an intrinsically serious one. However, it is plain that the Legislature contemplated that suspension might be appropriate, on occasion, in respect of relatively serious offences, since an aggregate term of up to 60 months is able to be suspended (s 76(1) Sentencing Act1995 (WA)). In the present case, the appellant's previous good character, the unlikelihood of any future offending, the serious consequences of conviction for her future employment prospects, and the fact that she is sole carer of her small child, all combine to suggest that immediate imprisonment is not warranted. I would therefore have suspended both terms, for a period of 12 months.
BUSS JA: On 7 November 2006, the appellant was convicted, on her plea of guilty, on an indictment containing two counts, namely:
(a)"Between 18 November 2004 and 27 April 2006 at Clarkson and elsewhere [the appellant] attempted to pervert the course of justice by falsely representing to police officers that her vehicle, Hyundai Excel, registration number 9HA‑226 was stolen", contrary to s 143 of the Criminal Code (WA);
(b)"On 20 November 2004 at Clarkson [the appellant] by falsely pretending to an employee of GIO General Ltd that her Hyundai Excel, registration number 9HA‑226 was stolen and damaged, obtained from GIO General Insurance repairs to the sum of $4,934.48", contrary to s 409(1) of the Code.
The learned sentencing Judge, Healy DCJ, imposed a term of 18 months' immediate imprisonment in respect of each count. The sentences were made concurrent and ordered to commence on the date of sentencing, that is, 7 November 2006. The appellant was made eligible for parole.
On 31 January 2007, Wheeler JA granted the appellant leave to appeal.

The circumstances of the offences

The circumstances of the offences are set out in detail in the reasons for decision of Roberts‑Smith JA in "N" v The State of Western Australia [2006] WASCA 276, in the context of an unsuccessful application by the appellant for bail pending the hearing and determination of this appeal. It is convenient to reproduce, in these reasons, his Honour's statement of the relevant facts:
"It is logical to deal with count 2 first. That was a charge that on 20 November 2004 at Clarkson, the appellant, by falsely pretending to an employee of GIO General Limited that her Hyundai Excel car was stolen and damaged, obtained from GIO repairs to the sum of $4934.48.
The facts in relation to that were that between Tuesday 16 and Friday 18 (sic 19) November 2004, the appellant was at her home address when she was approached by her juvenile co‑accused in her front yard. They had a conversation about her car being for sale. She told him that she was having trouble selling it. She had previously borrowed $3000 from her parents to purchase another car. She also had a finance debt of approximately $3500 and bills totalling approximately $1000. Her debts in total were approximately $7500.
The Hyundai car was insured with GIO General Ltd for an agreed value of $8600.
The juvenile co‑offender told the appellant he knew someone who could take the car and burn it to enable her to claim the sum on insurance. She agreed to that, and the co‑offender left.
About 8 pm on Friday 19 November 2004, the juvenile co‑offender went to the appellant's home in company with the third offender, Dash. The juvenile knocked on the door and spoke with the appellant. He told her they were there to take the Hyundai.
The appellant went inside and obtained the spare key and an immobiliser for the vehicle and handed them to the juvenile. He then took them to Dash who was standing in the driveway near the car and gave them to him. Dash then drove the Hyundai away from the premises and the juvenile left separately.
About 9 pm that evening Dash returned to the vicinity of the appellant's home and picked up the juvenile in the Hyundai. They drove around the suburban area at excessive speeds in a reckless manner. Dash dropped the juvenile offender in the vicinity of the local High School.
About 10.30 pm Dash was involved in a police pursuit in the Hyundai in an adjacent suburb. He was apprehended by police [at] approximately 10.39 pm when he crashed the Hyundai into a garden bed and a police car. This caused $2423.31 worth of damage to the Hyundai. Approximately 11 pm the appellant telephoned police and told them that the Hyundai had been stolen. She made a report to Constable Fitzmorris and was issued an incident report number.
On 20 November [2004] the appellant telephoned GIO General Ltd Insurance and informed them that her Hyundai had been stolen and had been involved in a police pursuit where it had been crashed.
GIO made arrangements to have the car towed, repaired and later returned to the appellant. She obtained a hire car through GIO while the Hyundai was being repaired. The total cost for the hire car, the towing costs and investigation costs associated with investigating the claim was $4934.48.
Count [1] concerned the appellant falsely representing to police that the Hyundai had been stolen. Her intention at the time was that Dash would burn the vehicle and she would claim the full 'write off' value of $8600 from GIO. As is apparent from the circumstances outlined above, Dash did not burn the car because he was apprehended by police before he had a chance to do so.
Dash was arrested by police and charged with stealing the motor vehicle contrary to s 378 of the Criminal Code. Police officers interviewed the appellant on 20 November 2004 and obtained a written statement from her in respect of that. The statement was later typed and she signed it with the usual declaration at its conclusion, to the effect that the content of the statement was true and she knew she would be committing an offence if it were not.
In her statement the appellant maintained that the car had been stolen and that she had no knowledge of who stole it, nor the circumstances in which it was stolen. She stated that she may have left her keys in the ignition while she was watering her garden.
Dash appeared in the Joondalup Magistrates Court charged with stealing on 24 November 2004. He made several other appearances between that date and 20 April 2005, when a trial date was set for the District Court on 2 June 2006.
In late April 2006, Dash told police what had in fact happened. As a result, the appellant was interviewed further by police. On 26 April 2006 she took part in a video record of interview with detectives and admitted to having made a false initial statement to the police."

The learned sentencing Judge's remarks

The learned sentencing Judge noted (at t/s 14 ‑ 15):
"In imposing sentencing the court is required to impose a sentence which is in proportion to the seriousness of the offending behaviour, and that's to be judged by looking into the penalties which can be imposed in the circumstances in which the offences were committed.
As you know, the penalty for both these offences is a maximum term theoretically of seven years. It has to be reduced by a third because of the legislation."
The learned Judge recounted the circumstances of the offences, and then said (at t/s 15 ‑ 16):
"Once the story had come apart [as a result of Mr Dash's confession], you fully cooperated with the authorities at that time.
The co‑offender has suffered consequences of being involved with you. He was a much younger person than you, or younger person than you, and in addition to other sentences that he was sentenced to for other offences he has had to do four months' imprisonment in relation to this offence.
I have had the benefit of hearing the remarks made by your counsel in relation to you. You don't have any previous convictions at all. You are a single mother with the care of a six‑year‑old son and your life to date has been blameless as far as any offending behaviour has gone.
Unfortunately, for reasons which you have now realised were - or fears which you had but have … realised now are groundless you didn't tell your family in relation to these matters and have tried to bear all the responsibilities yourself without sharing your troubles with your family. Since I have remanded you this morning you have now told your family and the family do give you support in relation to the matter despite your fears and are prepared to make arrangements in relation to the care of your son.
The state has made submissions in relation to these offences that the courts usually see the offence of attempting to pervert the course of justice as very serious because of the damage it does to the administration of justice. In this case it went a very long way with somebody facing a trial for an offence that they did not commit. They may have committed other offences but not the offence that they were charged with and that was persisted with without you coming forward to make a clean breast of it.
That person was the person who brought the matter to the attention of the authorities as to what the correct position was. The fraud on the insurance company was a serious one. You knew exactly what the position was and yet you were prepared to take advantage of your insurance policy to claim the value of the vehicle being repaired and the hire costs knowing that you were the person who had arranged for the vehicle to be destroyed.
I realise that you are older now. You were 25 at the time these offences occurred but you were certainly no juvenile."
His Honour decided that a term of imprisonment was warranted, and then gave consideration to whether the term should be suspended or not (t/s 16 ‑ 17):
"I realise that a term of imprisonment is a sentence of last resort and I am fully aware of the submissions made by your counsel in relation to reasons why you should have that term suspended but in my view there are no sufficient reasons why it should be suspended and an immediate term of imprisonment should be imposed for two reasons; to deter people of like mind from committing offences of perverting the course of justice which is always viewed seriously by the courts and in relation to insurance fraud it has an impact on the whole community.
People think insurance companies are big companies and they don't suffer any loss but that's not the case because insurance companies are commercial operations. They are out there to make a profit and they have to make a profit to keep their shareholders happy and in making a profit they have to ensure the premiums are sufficient to cover any claims which are made, and if false claims are made then that necessarily increases the premiums all people insuring with that company have to meet."
His Honour made an order that the sentences for the offences be served concurrently, for these reasons (t/s 17):
"They're two different, completely different offences, although they're arising out of the same events, and I think that in those circumstances the offences should be served concurrently."
Finally, his Honour noted (at t/s 17) that the appellant had not spent any time in custody and he therefore ordered that the terms of immediate imprisonment commence immediately (that is, from 7 November 2006).

The grounds of appeal

There are two grounds of appeal:
"1.The sentence was manifestly excessive:
a.having regard to the Appellant's antecedents; and
b.having regard to the appropriate range for offences of this kind.
2.The Learned Judge erred in declining to order that the terms of imprisonment imposed be suspended."

Sentencing appeals: general principles

The task of this Court is to determine whether there was an error made in sentencing the appellant, error being understood, in this context, as it was explained in House v The King (1936) 55 CLR 499 at 505:
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
Those principles apply both to State appeals against sentence alleging inadequacy, and to appeals against sentence by offenders alleging excessiveness. See Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at 324 ‑ 325 [3] ‑ [4]. An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the primary judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own opinion for that of the primary judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the primary judge. See Lowndes v The Queen (1999) 195 CLR 665 at 671 ‑ 672 [15].
The High Court has emphasised that there is no single correct sentence, and that primary judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Markarian v The Queen (2005) 79 ALJR 1048 at 1055 [27].

The merits of ground 1

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale, where Gleeson CJ and Hayne J observed, at 325 [6]:
"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."
In Vagh v The State of Western Australia [2007] WASCA 17, Roberts‑Smith JA said, at [47]:
"Whether or not a sentence is manifestly excessive can only be gauged by seeing how the sentence falls with the established range of sentences for offences of the kind, taking into account all factors which are relevant to the offending and to the offender in the particular case. A claim that a sentence is manifestly excessive (or inadequate) is a claim of implicit (that is otherwise unidentifiable) error. It would ordinarily (if not always) be impossible to demonstrate that inadequate (or undue) weight was given to a particular factor, in the exercise of a sentencing discretion, in the absence of specific, identified error. The attribution of weight to one or more factors in a combination of factors is the very essence of discretionary judgment and (in the absence of a statutory requirement), ordinarily not to be quantified in sentencing (Markarian v The Queen (2005) 79 ALJR 1048). So the question can only be whether, having regard to all those relevant factors, the sentence imposed falls so far outside the range of sentences for offences of the kind as to lead to the conclusion that some error in the exercise of the discretion must have been made even though it cannot be identified (Cranssen v The King (1936) 55 CLR 509; House v The King (1936) 55 CLR 499)."
Also see Chan (1989) 38 A Crim R 337, where Malcolm CJ said, at 342:
"To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender."
In the present case, each of the offences in question carried a maximum term of 7 years' imprisonment (4 years 8 months after the introduction of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act2003 (WA)).

I will consider ground 1, first, in relation to the count of attempting to pervert the course of justice and, then, in relation to the count of fraud.
The offence of attempting to pervert the course of justice is serious. Offences of this kind strike at the heart of the criminal justice system and there is a need for general deterrence. See Jeffery v The Queen, unreported; CCA SCt of WA; Library No 920357; 3 June 1992, per Malcolm CJ at 10; Rauhina v The Queen [2002] WASCA 91 at [16]. There is no tariff for the offence. See Rauhina at [16]; Ranford v The State of Western Australia (No 2) [2006] WASCA 243 at [36].
Although there is not a tariff for the offence of attempting to pervert the course of justice, consistency in sentencing is a fundamental principle of the criminal justice system. As Franklyn J said in Goulding (1991) 56 A Crim R 75 at 79, in the course of considering an application for leave to appeal against the sentence imposed upon the applicant for attempting to pervert the course of justice:
"The applicant has referred to a number of decisions relating to offences of the same or a similar nature and to the penalties imposed in respect of each. A custodial term was imposed in all but one, the terms ranging from nine months to two years. The one exception was distinguishable on its own facts. Each of the others also has to be considered on its own facts. In some of those cases the deception was carried through to the extent of deceiving the court, a circumstance which, as counsel rightly points out, adds to the gravity of the circumstances. That however was not common to every case and cannot be said to be the factor which determined whether or not imprisonment should be imposed. As I said in Dawes (unreported, Court of Criminal Appeal, WA, Library No 8944, 12 July 1991):
'There is an increasing tendency on appeals against sentence to cite cases with overall similar facts but with lesser penalties than that the subject of the appeal. That was done in this case. Although in the interests of consistency regard must be had to such cases they cannot be determinative of the appropriate penalty. There are always differences. Without being exhaustive they may lie in the relationship between the offender and victim, the circumstances of the offence, the antecedents of the offender and/or the victim, the circumstances of the victim, the effect of the offence on the victim and even conduct of the offender subsequent to the offence. Unless all relevant matters from each such case are fully before the court the case decision is not a good guide to the appropriate disposition of the matter before the court. The application of such cases without a full appreciation of all relevant circumstances would encourage a 'tariff' approach to sentencing, a result which in my view is undesirable and not within the contemplation of the legislation. Consistency in sentencing is another matter. It is achieved by a recognition of the similarities and dissimilarities between the facts of the case in question and those of the purportedly similar cases which the court is asked to apply in fixing sentence.'
In the present case there is no 'victim' in the sense there referred to but the principle is the same."
In Ranford, Roberts‑Smith JA reviewed various authorities as to the sentences which have been imposed for the offence of attempting to pervert the course of justice. Those authorities are, however, of limited assistance in determining whether the sentence imposed on the appellant in the present case was manifestly excessive. All of the authorities reviewed, with the exception of Rauhina, concerned allegations that the offender in question had given a false name to the police to avoid his or her being charged with an offence. Roberts‑Smith JA noted, at [36], that his review of the authorities involving the giving of a false name to avoid the consequences of traffic offences indicated that, where imprisonment has been imposed, sentences have ranged from around 6 to 17 months before the introduction of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act, and around 4 to 11 months after their introduction. His Honour then added:
"Clearly these are not fixed starting and ending points of sentences which may be imposed, but are general indicia only, for purposes of broad comparison."
In Rauhina, the appellant was charged with and convicted of four offences, namely:
(a)assault occasioning bodily harm;
(b)entering a residence with intent to commit an offence therein, with the aggravating circumstance alleged of doing bodily harm to a resident;
(c)stealing a motor vehicle with threats of actual violence; and
(d)attempting to defeat the course of justice in relation to the appellant's prosecution for the offences in pars (a), (b) and (c) above.
The appellant pleaded guilty to the first count and, after a trial, was convicted on the other counts, with the exception that he was acquitted in relation to the circumstance of aggravation alleged in the second count. The appellant was sentenced to 9 months' imprisonment on the first count, 3 years' imprisonment on each of the second and third counts (to be served concurrently with each other and with the sentence on the first count), and 3 years' imprisonment on the fourth count (to be served cumulatively). The total effective sentence was therefore 6 years. An appeal against sentence in relation to the fourth count was dismissed. The material facts relating to the fourth count were that about two weeks after the commission of the other offences, the appellant telephoned the complainant and threatened him with violence if he did not withdraw the charges the subject of the first, second and third counts. The appellant had previous convictions for breach of a violence restraining order and for assault. Although the learned sentencing Judge accepted that he was a hard‑working family man, his Honour was of the view that he had shown no remorse. In the Court of Criminal Appeal, Wheeler J, with whom Malcolm CJ and McKechnie J agreed, said, at [17]:
"In the present case, the threat was made approximately two weeks after the other offences; this is in contrast with the common situation in relation to traffic offences, where a false name may be given in panic on the spur of the moment by a person who is detected driving unlawfully. It was a threat made to shield the guilty person, the appellant himself, and it was a threat of violence made to a person who had already been the subject of a violent assault by the appellant. The threat was made to a person who was the central witness in the case against the [appellant]. In my view, those factors justified the learned trial Judge in reaching the view that this was one of the more serious examples of such an offence. The sentence of 3 years' imprisonment is not a disproportionate one, having regard to those circumstances."
The Court's observation, in Rauhina, that the appellant had not demonstrated that the sentence was manifestly excessive was, with respect, plainly correct. The sentence of 3 years' imprisonment (which equates to 2 years after the introduction of the transitional provisions in the Sentencing Legislation Amendment and Repeal Act) was within the appropriate sentencing range although, in my opinion, towards the bottom of that range.
In the present case, the seriousness of the offence of attempting to pervert the course of justice, which the appellant committed, is apparent from the following:
(a)The offence was part of a deliberate scheme which the appellant entered into with two other people to deceive and defraud an insurance company.
(b)The offence was not committed immediately after the adoption of the scheme (or on the "spur of the moment"). There was sufficient time between the adoption of the scheme and its implementation for the appellant to have reflected upon the gravity of the conduct which she had decided to carry out.
(c)Although it was the juvenile co‑offender who suggested the scheme to the appellant, the appellant readily agreed to it. Also, the appellant was aged 25 whereas the co‑offender was materially younger.
(d)The appellant signed and gave to the police a written statement that was false in several particulars. The statement included a declaration made pursuant to cl 4(5) of Sch 3 to the Criminal Procedure Act 2004 (WA). When she signed the statement the appellant must have known that, on the basis of her statement, someone, probably Mr Dash, would be charged with stealing her vehicle.
(e)Indeed, on the basis of the appellant's statement, Mr Dash was charged with stealing the appellant's vehicle. He made several appearances in court in answer to that charge before it was listed for a trial to commence on 2 June 2006.
(f)In late April 2006, approximately 17 months after the appellant gave her vehicle to Mr Dash and the juvenile co‑offender, Mr Dash confessed. The appellant did not herself disclose the scheme to the police until 26 April 2006, when she was confronted with Mr Dash's confession.
The appellant's personal circumstances and the other mitigating features were explained by her counsel to the learned sentencing Judge. They were also emphasised in the submissions made on the appellant's behalf to this Court. In particular, the matters of mitigation included:
(a)the appellant's relative youth in that, at the material time, she was aged 25;
(b)the absence of a prior criminal record or, for that matter, any traffic convictions;
(c)the appellant is the sole carer for her 6‑year‑old child;
(d)the appearance of some remorse after the appellant was confronted with Mr Dash's confession;
(e)the appellant's fast-track plea of guilty; and
(f)the unlikelihood of the appellant re‑offending.
The learned sentencing Judge referred to the mitigating features when imposing sentence. His Honour acknowledged (at t/s 16) that they were favourable to the appellant.
It is established that hardship to innocent third parties (in the present case, the appellant's 6‑year‑old child) will not substantially mitigate the sentence to be imposed on an offender unless there are exceptional circumstances. See Anderson v The Queen (1996) 18 WAR 244 per Malcolm CJ at 247, per Murray J at 248 ‑ 249 and per Steytler J (as his Honour then was) at 253 ‑ 254; The State of Western Australia v Skaines [2006] WASCA 160 at [36] ‑ [47]. The hardship which would undoubtedly be occasioned to the appellant's child was not a substantial mitigating aspect. Counsel for the appellant informed the learned sentencing Judge (at t/s 14) that the appellant's mother would be able to care for the child if the appellant was imprisoned.
The term of 18 months' imprisonment imposed by the learned sentencing Judge was a severe sentence. It was, however, within the appropriate sentencing range, although, in the circumstances, at the top of that range. I am not persuaded that his Honour's sentencing discretion miscarried or that the term he imposed was manifestly excessive.
I turn now to the count of fraud.
This offence was also serious. The appellant persisted with her intention to deceive and defraud in that, after she discovered that the original plan to destroy the vehicle had not been carried out, she nevertheless deceived and defrauded the insurance company by initiating and pursuing the insurance claim for the cost of repairing the vehicle. The benefits which she obtained from the scheme comprised not only the repairs to her vehicle, but also the use of a hire car and the payment of other ancillary expenses. I consider, however, that the term of 18 months' imprisonment for this offence was inappropriately high, and outside the range of a sound discretionary judgment, in that:
(a)although the elements of each count on the indictment were different (compare Pearce v The Queen (1998) 194 CLR 610 at 623 ‑ 624 [40], [43] ‑ [45], [49]), there was some overlap between the circumstances of the counts;
(b)the size (in monetary terms) of the fraud perpetrated on the insurance company was at or towards the lower end of the scale of insurance frauds; and
(c)the appellant's personal circumstances and antecedents were favourable from a sentencing perspective.
This Court should resentence the appellant on the count of fraud.

The merits of ground 2

By s 6(4) of the Sentencing Act1995 (WA):
"A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it."
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in Div 1 of Pt 2 of the Sentencing Act, relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and (3) of the Act.
Section 76(1) of the Sentencing Act provides:
"A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months."
By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
In Dinsdale, Kirby J made the following observations, at 348 [85], in relation to s 76(1) and (2) of the Sentencing Act:
"Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term (Thomas, Principles of Sentencing, 2nd ed (1979), pp 244-245; R v P (1992) 39 FCR 276 at 285). This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy (cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey (1980) 2 A Crim R 254 at 259-260). On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment (R v Liddington (1997) 18 WAR 394 at 402, per Ipp J)."
The factors to be considered when deciding whether or not to suspend a sentence of imprisonment were referred to by Steytler J (as his Honour then was) in R v Liddington (1997) 18 WAR 394. His Honour said, at 406:
"Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby (at 62-67); R v Kirk (1984) 6 Crim App R (S) 231; GP, per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243), whether there is any element of persistence (see Wood v Samuels (at 468); R v Kruger (at 221)); general deterrence (Causby (at 62); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police (1994) 61 SASR 589 at 592; cf R v Percy (at 72-73); the need to demonstrate the condemnation of the community for offences of that kind (Causby (at 62); GP, per Malcolm CJ (at 220); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212-213; R v P (at 285); GP, per Murray J at 234).
That list is, of course, not exhaustive. There can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels (at 468)) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case."
In the present case, it is apparent from the learned Judge's remarks, at t/s 16 ‑ 17 (see [28] above), that his Honour, first, decided that a term of imprisonment should be imposed on each count and, having made that decision, then considered whether the term should be suspended. His Honour, in determining whether to suspend, revisited adequately the issues that were relevant to the imposition of the terms of imprisonment. In particular, his Honour recorded that he was "fully aware" of the submissions made by the appellant's counsel as to why the terms should be suspended. His Honour did not require that the terms be served immediately solely on the basis of the seriousness of the offences and the necessity for general deterrence.
In my opinion, the learned sentencing Judge did not make any specific error in refusing to suspend the terms of imprisonment. Further, his Honour's refusal to suspend did not result in the imposition of sentences which were manifestly excessive (although, as I have mentioned, I consider the length of the term imposed for the count of fraud was outside the appropriate sentencing range).

Conclusion

I would dismiss the appeal against sentence to the extent it relates to the count of attempting to pervert the course of justice.
I would, however, allow the appeal to the extent it relates to the count of fraud. I consider that, having regard to the circumstances of the offence, the personal circumstances of the appellant, the other mitigatory features, and the necessity for general deterrence in relation to offences of this kind, an appropriate sentencing disposition for the count of fraud is imprisonment for a term of 12 months. By s 76(3)(b) of the Sentencing Act, suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended. The appellant is, of course, serving a term of 18 months' immediate imprisonment in relation to the count of attempting to pervert the course of justice and I have decided that the appeal in relation to that sentence should be dismissed. In any event, having reflected upon all of the matters I have referred to in the context of fixing the term of 12 months, I would not have suspended that term even if suspension had been available as a sentencing option.
The terms of 18 months and 12 months should be served concurrently as from the date on which the learned sentencing Judge imposed sentence (that is, 7 November 2006).
The appellant should remain eligible for parole.