R v Aggarwal

[2001] QCA 443

[2001] QCA 443

COURT OF APPEAL

McMURDO P
DAVIES JA
AMBROSE J

CA No 146 of 2001

THE QUEEN

v.

ANITA AGGARWAL  Applicant

BRISBANE

..DATE 16/10/2001

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 12 June 2001 to an offence of perverting the course of justice on 13 May 1999.  12 June 2001 was the date fixed for her trial and, up to that time, the applicant had indicated an intention of pleading not guilty. 

On 15 June, she was sentenced to four months imprisonment.  She seeks leave to appeal against that sentence.

The attempt to pervert the course of justice consisted of an attempt by the applicant to persuade a woman employed by the applicant's father or, more accurately, a company apparently controlled by the applicant'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 67(b) of the Crimes Act.

The applicant's father, who is 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, intended for Argentina, without such a certificate.  When asked for that certificate by an officer of Australian Quarantine and Inspection Service, the applicant'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, an employee of the company, 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 this export.

The applicant, apparently in order to assist her father to avoid prosecution in respect of the offences which he had committed, also sought to persuade the woman to falsely tell the inspector and, indeed, to initiate a meeting with the inspector in order to tell her that the document was produced only as a training exercise.

Notwithstanding that her conversation with the woman had, unknown to her, been tape-recorded, the applicant pleaded not guilty and indicated her intention of defending the charge.  It was only on the day of her trial, as I have already mentioned, that she altered her plea to guilty.  It follows, as the learned sentencing judge said, that the applicant exhibited no sign of remorse.  Her decision to plead guilty was plainly a pragmatic one only.  That is not to say that it should not be taken into account.  On the contrary, it should be and the learned sentencing judge took it into account.  But it is not evidence of remorse.

In the applicant's favour it may be said that she had nothing personally to gain by her criminal act.  It is reasonable to accept that she did what she did for the purpose of helping her father avoid what otherwise appeared to be an inevitable conviction and gaol sentence.

Nor is there any reason to think that the applicant, apart from this occasion, is of other than good character.  She has no other criminal convictions and nothing else was said against her.  She is a married woman, 32 years of age, and there is no reason to think that she is likely to offend again.  Indeed, the learned sentencing judge said that he should assume that, apart from this offence, the applicant would ordinarily be a law-abiding citizen and that she was misguided in committing the offence because of a desire to protect either her family business or her father.

The learned sentencing judge rightly referred to the seriousness, generally, of offences of perverting the course of justice.  His Honour referred to the judgment of this Court in R v. Morex Meat Australia Pty Ltd [1996] 1 QdR 418 at 445 in which this Court, having remarked on the fact that all comparable sentences cited to the Court had attracted terms of imprisonment to be actually served and that no case had been referred to in which a non-custodial sentence was imposed and allowed to stand, cited with approval a statement made in a Western Australian appeal that:

"The offence of attempting to defeat the course of justice has consistently been treated, like perjury, as a crime that strikes at the very heart of the administration of the justice and, as such, deserving of custodial punishment."

This Court in Morex went on to say that, in cases of this kind, courts recognise the necessity for imposing a punishment which will be seen as a deterrent both personal to the offender and to the community at large.

However, the learned sentencing judge appeared then to assume that these statements required the imposition of an actual custodial term in every case of an offence of this kind for his Honour went on to say:

"A period of actual custodial punishment must be served because of the principles and the degree of seriousness which courts attach to offences of this kind."

I do not think that this Court in Morex intended by its remarks to preclude the imposition, for an offence of this kind, of a sentence which does not include a period of actual custody.  It was doing no more than rightly emphasising the seriousness of such offences and pointing out that, generally, offences of this kind required a period of actual custody to be served.  Moreover, the cases contained in the quite extensive schedules provided to the learned sentencing judge and to this Court show that a period of actual custody is not an invariable requirement in such cases. 

Mr Sofronoff for the applicant referred us in particular to Stone, a decision of the Supreme Court of Victoria on 13 August 1998, and Fortune, a decision of the New South Wales District Court on the same day, the latter in which a periodic detention had been imposed where sentences which either did not involve a period of actual custody or which required, in the second of them, periodic detention only, were imposed in circumstances not dissimilar to this in which one person had acted on behalf of another.  He also referred to Wing, a local Court decision in New South Wales on 15 February 2000.

Another relevant case which was referred to his Honour below and discussed during the course of argument here was the decision of Hugo v. Nasco, a decision of the District Court of Western Australia on 28 May 1999.  That was a case which went to trial involving two members of the Australian Federal Police who had created a false entry in a property seizure record as to a quantity of LSD located during a search of a suspect's residence.  As it turned out, it was unnecessary to secure the conviction they were after and the records of the two police officers were altered some time later and not relied on in the case which they were attempting to prosecute. 

Nevertheless, it seems to me to be an offence of substantially greater seriousness than that involved here because, as the President pointed out during the course of argument here, they were Australian Federal Police officers whom the community might reasonably think would be paragons of virtue in this respect, and that examples should be made of them where they have failed in that respect, and the case went to trial.  Nevertheless, though they were sentenced to 12 months imprisonment, there was an immediate release order imposed.

It is perhaps understandable that his Honour, the learned sentencing judge here, was misled by the statements made in the course of delivering judgment in Morex, in reaching the conclusion which he did, because those statements were, as appears from what I have said, put in very strong terms.
Nevertheless, it appears that his Honour erred in thinking that the very nature of this offence required him to impose a period of actual custody, irrespective of the circumstances of the case. 

In the result, his Honour imposed a term of 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.

His Honour having erred in this way, it is necessary for this Court to re-sentence the applicant.  In doing so, I would not wish to depart from what was said, in effect, in Morex, namely that in cases of this kind it is generally necessary to impose a punishment which can be seen as a personal deterrent and a deterrent to the community at large and which generally requires a period of actual custody.

Notwithstanding that the offence which was committed here was towards the lower end of the spectrum of offences of this kind, as I have pointed out, an offence of lesser seriousness than that in Hugo and Nasco, I do not think that that alone would have entitled the Court to depart from that general principle.

However, there were the additional factors particularly that there was no personal benefit to the applicant in committing the offence which she committed and that it appears to have been committed solely for the benefit of helping to avoid a criminal conviction and gaol for her father.

Those factors do not justify a reduction of the sentence imposed but I think they are reasons in this case for ordering a conditional release.  In addition, the applicant has spent four days in custody and that in fact, should be taken into account.

Accordingly, I would grant the application, allow the appeal and alter the sentence below to the extent only of adding an order that the applicant be released forthwith upon her own recognisance in the sum of $1,000 that she be of good behaviour for a period of four months.

THE PRESIDENT:  I agree.

AMBROSE J:  I agree.

THE PRESIDENT:  The orders are as proposed by Justice of Appeal Davies.

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