R v Aggarwal

[2002] QCA 32

[2002] QCA 32

COURT OF APPEAL

DAVIES JA
McPHERSON JA
AMBROSE J

CA No 146 of 2001

THE QUEEN

v.

ANITA AGGARWAL  Respondent

BRISBANE

..DATE 15/02/2002

JUDGMENT

DAVIES JA:  On 15 June 2001 the respondent, Anita Aggarwal, having been convicted of an offence of attempting to pervert the course of justice pursuant to section 43 of The Commonwealth Crimes Act was sentenced in the District Court to four months' imprisonment.  On 16 October 2001 this Court allowed an appeal against that sentence to the extent only of adding an order that the respondent be released forthwith on her own recognisance in the sum of $1,000 that she be of good behaviour for a period of four months.

Then on 7 November 2001 this Court, on the application of the Crown, re-opened the appeal proceeding of 16 October 2001 on the basis that the decision on that date was made on a clear factual error of substance.  The matter was then adjourned to today.  The applicant seeks to have the respondent re-sentenced by imposing the sentence which had initially been imposed in the District Court.

The attempt to pervert the course of justice, which was admitted, consisted of an attempt by the respondent to persuade a woman formally employed by the respondent's father, or more accurately a company apparently controlled by the respondent's father, to give false information to officers of the Australian Quarantine and Inspection Service for the purpose of preventing a proper investigation of an alleged breach of section 67B of The Crimes Act.

The applicant's father who was relevantly the managing director of the company, to which I have just referred, engaged through that company in the business of exporting seeds and grains.  He forged a certificate called a phytosanitary certificate which was a certificate required by certain countries, including Argentina, to which grain is exported.

The company had exported grain to Singapore apparently intended for Argentina without such a certificate.  When asked for that certified by an officer of the Australian Quarantine and Inspection Service the respondent's father forged such a certificate.  When it appeared that that forgery might be discovered he attempted to persuade the woman to whom I have just referred to tell the inspector that the document had been produced for training purposes only and consequently was not intended to satisfy the inspector that such a certificate had in fact been issued for that export.

The respondent also sought to persuade the woman to falsely tell the inspector and indeed initiate a meeting with the inspector in order to tell him that the document was produced only as a training exercise.  Her conversation with that woman was secretly tape-recorded by that woman.  There was no doubt about the seriousness of the nature of the offence committed by the respondent or indeed the respondent's lack of remorse for having committed it.

She indicated her intention of pleading not guilty only when the inevitability of the conviction must have dawned on her.  Indeed, she said later that the reason for pleading guilty was to avoid going to gaol.  There were, nevertheless, a number of mitigating factors which the learned sentencing Judge rightly took into account including one very important one to which I will refer shortly.

That is why he imposed a sentence of only four months' imprisonment emphasising that this was meant to reflect the lowest level of punishment that might be imposed to achieve the result which his Honour felt bound to reach having regard to the serious nature of the offence.  The error which this Court saw in his Honour's otherwise exemplary reasons for sentencing the respondent was his conclusion, in effect, that having regard to the seriousness of the nature of the offence he was bound to impose a period of actual imprisonment notwithstanding the mitigating factors.

The most important of these by far was that the main reason for the respondent committing the offence was to assist her father to avoid prosecution in respect of the offences which he had committed and, I might add, almost certain conviction.  It is true that the respondent also had another reason, namely that she was concerned to protect herself in respect of liability for having also given to an investigator this false account of the production of the document.  But there is no doubt that the substantial reason for this Court's removal of the requirement that a period of actual custody be served was that the main reason for her committing this offence, by far, was to avoid what appeared to be an inevitable gaol sentence for her father and that she had gone to see this woman to persuade her to give false evidence at her father's instigation.

After the determination by this Court of the appeal to which I have just referred the respondent gave evidence at her father's trial.  This was on 31 October 2001.  There, both in evidence before the jury and in a voir dire, she gave a contradictory version of why she went to speak to this woman and why she tried to persuade this woman to give a false statement to the investigating officer.

The following exchange, which occurred during the course of her cross-examination in the voir dire, is a useful summary of this evidence:

"You would be prepared to take responsibility for things in the order to ensure that he is not embarrassed in the community or convicted of an offence.  Would that be correct?‑‑ No.

So nothing you did in any way - I want you to be absolutely clear about my question so that you can answer it as correctly as possible and as clearly as possible.  Nothing that you did in going to Cathy Slack in any way reflected or was meant to have any effect for your father?‑‑ That's correct.

That is absolutely correct?‑‑ Yep.

You are certain about that?‑‑ I went on my own accord for my own reasons".

If the facts to which the respondent swore on 31 October 2001 had been before this Court when it allowed her appeal on 16 October 2001 I have no doubt that it would not have set aside the sentence of the learned District Court Judge and would have refused the application.  Even though his Honour might have erred in feeling bound by previous authority to require the respondent to serve a period of actual imprisonment, nevertheless the sentence which he imposed was, on the facts to which I have just referred, that is the facts given in evidence in her father's trial, the sentence was a correct one.

I can see no reason at all not to accept the correctness of the respondent's evidence given in her father's trial for the purpose of this re-opening.  It was an admission against interest which, in my opinion, disclosed a clear factual error of substance upon which the respondent was originally sentenced both by the District Court and this Court.

I would therefore make the following orders:

1. Set aside the sentence imposed by this Court on 16

October 2001;

1. That the respondent be sentenced to a term of four months' imprisonment;

1. That four days in custody on 15, 16, 17 and 18 June

2001 be taken to be imprisonment already served under

that sentence.

McPHERSON JA:  I agree.

AMBROSE J:  I agree.

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