R v Alderson - [2016] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ALDERSON
[2016] SASCFC 85
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
8 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
Appeal against sentence.
The appellant pleaded guilty to attempting to pervert the course of justice. The defendant and a friend were walking home from a party when a vehicle driven by another friend stuck the appellant’s friend, who died at the scene despite CPR administered to him by the driver.
The appellant and the driver both gave false statements to the police at the scene, stating that their friend had been struck by an unknown dark vehicle. Some hours later, they both gave formal statements to the police confirming their stories.
Later that day, the appellant and the driver both contacted police and told the police the true facts. In the meantime, the police lost the opportunity to take a blood alcohol test of the driver.
A Judge of the District Court sentenced the appellant to imprisonment for 11 months, reduced from 18 months due to his guilty plea and suspended on his entering into a bond to be of good behaviour for two years. The appellant appeals against the sentence on the ground that it is manifestly excessive.
Held by Blue J (Kourakis CJ and Stanley J agreeing) allowing the appeal:
1. The gravity and circumstances of the offence were such that any sentence other than of imprisonment would have been inappropriate (at [48]).
2. A starting point of imprisonment for 18 months was manifestly excessive (at [54]).
3. Subject to section 10C(3) of the Criminal Law (Sentencing) Act, the maximum discount available under section 10B for the guilty plea is 10 per cent. However, under section 10C(3), the maximum discount is 20 per cent because the appellant was not committed for trial on the charge of attempting to pervert the course of justice and an ex officio Information was later laid charging that offence (at [57]-[62]).
4. Observations on the need for legislative review of section 10C (at [64]).
5. Appeal allowed. Appellant resentenced to imprisonment for nine months and 18 days, suspended upon entering into a bond to be of good behaviour until November 2017 (at [65]-[66]).
Criminal Law Consolidation Act 1935 (SA) s 19ab, s 43, s 241, s 242, s 243, s 248, s 242, s 245, s 248, s 256; Road Traffic Act 1935 (SA) s 45(1), s 256; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 39, referred to.
Higgins v R Unreported, Court of Criminal Appeal of Western Australia, 1990; R v Barba [1977] 2 NSWLR 502; R v Goulding [2007] SASC 60; R v Manunta (1989) 54 SASR 17; R v Morse (1979) 23 SASR 98; R v Muldoon (2015) 123 SASR 1; R v Rogerson (1992) 174 CLR 268, discussed.
R v Vreones [1891] 1 QB 360; Question of Law Reserved by Trial Judge (No 1 of 2008) [2008] SASC 329, considered.

R v ALDERSON
[2016] SASCFC 85
Court of Criminal Appeal: Kourakis CJ, Blue and Stanley JJ

KOURAKIS CJ: I would allow the appeal for the reasons given by Blue J. I would join in the orders he proposes.
BLUE J.
This is an appeal against sentence.
The appellant, Jahmayne Alderson, pleaded guilty to one count of attempting to pervert the course of justice[1] and was sentenced by a Judge of the District Court to imprisonment for 11 months, reduced from a starting point of 18 months on account of the appellant’s plea. The sentence was suspended on the condition that the appellant enter into a bond to be of good behaviour for two years.
[1] Criminal Law Consolidation Act 1935 (SA) s 256.
The appellant appeals on the ground that the sentence imposed is manifestly excessive. The appellant contends that the Judge erred by imposing a period of imprisonment and in the alternative that the period of imprisonment imposed is manifestly excessive.
Factual circumstances
The appellant and Jake Dillon attended a house party on the evening of 9 November 2013. The appellant was then 20 years old.
At about 2.30 am on 10 November 2013, the appellant and Mr Dillon left the party by foot, walking down the road in which the party was held. Shortly after, Daniel Jones left the party by motor vehicle and drove down the same stretch of road. Daniel Jones was 18 years old. He knew the appellant and Mr Dillon. As he was driving, he saw the appellant on the roadside. The appellant had turned away to urinate. Daniel Jones did not see Mr Dillon. Mr Dillon moved into the path of the vehicle and was struck.
Daniel Jones stopped the vehicle and yelled to the appellant to call an ambulance. The appellant became distressed and was unable to talk or act. Daniel Jones sent his passenger to get his brothers, went to the assistance of Mr Dillon and phoned 000. He administered CPR under instruction from the ambulance dispatcher. The appellant in the meantime walked away to the other side of the road, being unable to face what was happening.
Daniel Jones’ younger brother Braden arrived and assisted Daniel in performing CPR. Daniel Jones’ older brother Michael arrived two or three minutes later. Michael was obviously distraught and approached the appellant. He was yelling out “Blame it on me! Say it was me. Say it was me.” Daniel Jones told Michael Jones to “leave it.” The appellant refused to say it was Michael and told Michael that he was not going to say anything to the police.
An ambulance arrived and the ambulance officers took over administering CPR to Mr Dillon. Unfortunately, Mr Dillon died shortly thereafter. Police officers arrived shortly after the ambulance.
At about 4.00 am, the appellant gave a false statement to police officers while sitting in a police car at the scene of the accident. He told the police that, while he was urinating, he heard a noise and saw a dark coloured sedan driving away. He looked back and saw Mr Dillon lying on the ground, ran over to him, saw blood on his face and became distressed. He said that later on he saw Daniel Jones bending over to help Mr Dillon. Daniel Jones asked him what had happened and he told him that Mr Dillon had just been hit by a car.
At about 4.30 am, Daniel Jones gave a false statement to police officers at the scene of the accident. He told police that he left the party on foot and was passed by a dark blue sedan travelling at speed. He then came upon the appellant who was panicking and saw Mr Dillon lying on the ground.
At about 8.00 am, the appellant gave a more formal statement to police at the Elizabeth police station. He confirmed that what he had told police at the scene. Senior Constable O’Malley typed a statement by the appellant, which he signed. The statement included a preface in which the appellant stated that he knew that, if his statement included material which he knew to be misleading, he would be guilty of an offence. The statement included the following passages:
As I finished [peeing], I looked to my left down where Hermitage Drive continued after the bend, and saw a dark coloured car at the end of Hermitage Drive where it intersects with another street. The car turned right to travel towards Heaslip road. I don’t know if it was dark coloured because it was dark at the end of the street or if that was the colour.…
I turned around and I couldn’t see Jake anywhere. I started to walk over and I saw Jake lying on his back… He wasn’t moving and I thought he was dead. I just couldn’t look so I turned away. I started crying.
I’m not sure how long it was but the next thing I heard was a voice. I saw Daniel JONES kneeling by Jake. He was on the phone to the ambulance…
At about the same time, Daniel Jones also gave a more formal statement to police at the Elizabeth police station. He confirmed that he left the party on foot, saw a car speed past that appeared to be dark blue in colour, came upon the appellant and saw Mr Dillon lying on the ground.
At about midday, Daniel Jones attended at the Elizabeth police station and admitted that he was the driver of the vehicle which hit Mr Dillon.
At about midday, the appellant told the police that he wished to give a further statement. It was arranged for him to attend at the police station for a further interview. He attended with his mother. He told the police that Daniel Jones was the driver of the vehicle that collided with Mr Dillon. His explanation for providing a false account was that Michael Jones told him that, if he dobbed in Daniel Jones, he would be going down with Daniel Jones; Daniel Jones said that he would kill himself if he went down; and he did not want to see his friend locked up.
The appellant is now 22 years old. He has no prior convictions. He lives at home in a close knit family and is the eldest of four siblings. He was assessed by a psychologist, Michael Guarna, as being of below average intelligence with limited literacy, reading and written ability, counter-balanced by above average emotional intelligence.[2]
[2] AB37.
The appellant suffered acute stress syndrome as a result of witnessing the death of Mr Dillon. Mr Dillon had been his best friend whom he saw every day or evening. The appellant subsequently developed post-traumatic stress disorder. He saw Mr Guarna approximately monthly from November 2014 onwards.
Offences involving prejudice to the course of justice
At common law, it is an offence to attempt to pervert the course of justice.[3] The offence comprises “the doing of some act which has a tendency and is intended to pervert the administration of public justice”.[4] There is not a primary substantive offence of perverting the course of justice and a secondary derivative offence of attempting to commit the primary offence: there is a single substantive offence and the word “attempt” in the shorthand title of the offence is misleading in this respect.[5]
[3]    R v Rogerson (1992) 174 CLR 268 at 277 per Mason CJ, 279-280 per Brennan and Toohey JJ and 297-298 per McHugh J.
[4]    R v Vreones [1891] 1 QB 360 at 369 per Pollock B; cited with approval in R v Rogerson (1992) 174 CLR 268.
[5]    R v Rogerson (1992) 174 CLR 268 at 277 per Mason CJ, 279 per Brennan and Toohey JJ and 297-298 per McHugh J; Question of Law Reserved by Trial Judge (No 1 of 2008) [2008] SASC 329, (2008) 102 SASR 398 at [11]-[14] per Doyle CJ (with whom Gray and White JJ agreed).
In 1992, a new Part 7 was inserted into the Criminal Law Consolidation Act 1935 (SA) addressing offences of a public nature. Sections 242 to 245 create offences involving conduct prejudicial to judicial proceedings, namely perjury and subornation of perjury; evidence tampering; witness tampering; and juror tampering. Sections 241 and 248 create offences that also encompass conduct prejudicial to the institution or prosecution of judicial proceedings, namely impeding an investigation or assisting an offender to escape apprehension or prosecution or dispose of crime proceeds; and tampering with a person involved in a criminal investigation or judicial proceeding. Section 256 creates a residual offence of attempting to pervert the course of justice outside the scope of those sections (or of sections 246, 247 and 249 to 255).
Subsection 241(1) provides:
Impeding investigation of offences or assisting offenders
(1)Subject to subsection (2), a person (the accessory) who, knowing or believing that another person (the principal offender) has committed an offence, does an act with the intention of—
(a) impeding investigation of the offence; or
(b) assisting the principal offender to escape apprehension or prosecution or to dispose of proceeds of the offence,
is guilty of an offence.
The maximum penalty for a breach of section 241(1) is related to and depends on the penalty for the principal offence. The maximum penalty for a breach of section 242 or 243 is imprisonment for seven years and for a breach of section 244, 245 or 248 is imprisonment for 10 years. The maximum penalty for a breach of section 256 is imprisonment for four years.
Section 256 provides:
256—Attempt to obstruct or pervert course of justice or due administration of law
(1)A person who attempts to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of this Part is guilty of an offence.
Maximum penalty: Imprisonment for 4 years.
(2)Where—
(a) a person charged with an offence against any of the preceding provisions of this Part is found not guilty of the offence charged; but
(b) the court is satisfied that the accused is guilty of an offence against subsection (1),
the court may, if the maximum penalty prescribed for an offence against subsection (1) is the same as or less than the maximum penalty prescribed for the offence charged, find the accused guilty of an offence against subsection (1).
History of proceedings
On 11 December 2013, an information was filed in the Magistrates Court against Daniel Jones, Michael Jones and the appellant under which:
1Daniel Jones was charged with aggravated driving without due care;[6]
2Daniel Jones was charged with leaving an accident scene after causing death by careless driving;[7]
3Daniel Jones, Michael Jones and the appellant were charged with attempting to pervert the course of justice;[8] and
4the appellant and Michael Jones were charged with assisting an offender (knowing or believing that Daniel Jones had committed an offence, namely aggravated driving without due care, they provided a false statement to police, with the intention of assisting Daniel Jones to escape apprehension or prosecution for the offence).[9]
[6] Road Traffic Act 1935 (SA) s 45(1).
[7] Criminal Law Consolidation Act 1935 (SA) s 19AB(1).
[8] Criminal Law Consolidation Act 1935 (SA) s 256(1).
[9] Criminal Law Consolidation Act 1935 (SA) s 241(1).
On 18 December 2013, the appellant first appeared in the Magistrates Court on the charge of attempting to pervert the course of justice.
On 18 June 2014, the prosecution tendered no evidence on count 3 (attempt to pervert the course of justice) and the defendants entered not guilty pleas to the remaining counts and were committed for trial on those counts.
On 18 July 2014, the Director filed an information in the District Court against Daniel Jones, Michael Jones and the appellant under which:
1Daniel Jones was charged with aggravated driving without due care;
2Daniel Jones was charged with leaving an accident scene after causing death by careless driving;
3the appellant was charged with assisting an offender; and
4Michael Jones was charged with assisting an offender.
On 21 July 2014, Daniel Jones, Michael Jones and the appellant were arraigned in the District Court and pleaded not guilty. The matter was subsequently listed for trial to commence on 16 June 2015.
Shortly before 16 June 2015, it was agreed that Daniel Jones would plead guilty to failing to present to police having been the driver of a vehicle involved in an accident in which a person is killed or injured,[10] Daniel Jones and the appellant would each plead guilty to attempting to pervert the course of justice and the charge against Michael Jones would not be pursued.
[10] Road Traffic Act 1935 (SA) s 43.
On 16 June 2015, the Director laid a fresh ex officio information against Daniel Jones and the appellant in accordance with the plea agreement and entered a nolle prosequi in respect of the original information. Daniel Jones and the appellant pleaded guilty and the matter was adjourned for sentencing submissions.
In August 2015, Mr Guarna provided a psychological report in relation to the appellant. Mr Guarna expressed the opinion that, after seeing Mr Dillon on the road, the appellant experienced symptoms of disassociation and avoidance which inhibited his ability to react and respond to what was unfolding.
In September 2015, during sentencing submissions, counsel for the appellant submitted that, when he yelled out “say it was me”, Michael Jones told the appellant that Daniel Jones was going to kill himself, and that there had been no collusion between the appellant and either Michael or Daniel Jones leading to the appellant giving the false statements to the police about another car. This was inconsistent with submissions made by counsel for Daniel Jones. The sentencing Judge expressed concern about the factual basis for sentencing and it was arranged that Daniel Jones and the appellant would give evidence.
In October 2015, Daniel Jones gave evidence that, while he was giving CPR to Mr Dillon, the appellant and Michael Jones were on the other side of the road and Michael Jones was yelling “blame me! say it was me!”. He accepted in cross-examination by counsel for the Director that he was present at a conversation with Michael Jones and the appellant about a dark car and that, as a result of that conversation, he and the appellant both decided to tell police that it was a dark car that was involved in the collision. The appellant gave evidence denying that he was present at any discussion with Michael or Daniel Jones about a dark car. He testified that there was no collusion with either of them that led to the false statement that he gave to the police. He gave evidence that Michael Jones told him that Daniel Jones was going to kill himself but gave no evidence of any threat that, if Daniel Jones went down, the appellant would also go down.
On 16 November 2015, the Judge imposed sentence.
Sentencing Remarks
The Judge summarised the circumstances of the offending, the defendants’ personal circumstances, Mr Guarna’s psychological report and the character references provided on the appellant’s behalf.
The Judge was satisfied beyond reasonable doubt that there was collusion between Daniel Jones and the appellant that lead to their both saying that a dark sedan was involved. The Judge rejected the appellant’s evidence to the contrary and rejected his case that it was a mere coincidence that each of Daniel Jones and the appellant independently came up with the alternative of a mystery dark sedan after each rejecting Michael Jones’ suggestion that he should be blamed. There is no challenge on appeal to these factual findings.
The Judge accepted Mr Guarna’s opinion that the appellant suffered acute anxiety disorder and subsequently post-traumatic stress disorder. The Judge accepted that the appellant experienced a degree of disassociation but observed that nevertheless the appellant deliberately decided to give a false statement to the police and to persist with the false statement over the course of several hours.
The Judge accepted that the defendants were contrite and that their prospects of rehabilitation were reasonable to good.
The Judge concluded:
You soon confessed to your fabrications, but by then it was too late for you, Jones, to be meaningfully tested for presence of alcohol in your system and some police time must have been wasted into the bargain.
Furthermore, crimes of failing to present to the police and attempting to prevent the course of justice are plainly serious in that they have the potential to prevent justice from being done by misleading police and so preventing them from following leads which might take them to relevant evidence and the deterrence of others that might be minded to do what the two of you did must ordinarily be the predominant consideration in fixing sentence for crime such as yours.…
… The maximum reduction which can be extended on account of your respective pleas is 40%.
Your counsel both submit that a sentence of imprisonment ought not to be imposed and that each of you can properly be released on bonds without conviction, and Jones, your counsel also submits that your license need not be suspended. Your youth, your lack of convictions, your pleas, your prospects for rehabilitation and the various other considerations which operate [in] favour in each of you all point in that direction.
However, convictions are ordinarily recorded in the public interest and it is rare to refrain from doing so for what I called ‘indictable offences’. Your crimes are both serious and indictable and the deterrence of others must be taken into account in determining whether to convict or not. In so doing, your interests and the considerations which operate in your favour must be balanced against the public interest in convictions being recorded.
In my view, the seriousness of your crimes, notwithstanding that they could have been more serious, leads to the balance falling against you in this regard.
Also, in my view, the seriousness of your crimes makes it necessary to impose a sentence of imprisonment.
Jones, I will fix one sentence to cover both of your crimes and you will be sentenced to imprisonment for 15 months, but for your pleas it would have been two years. I fix a non-parole period of seven months. You will be disqualified from holding or obtaining a driver’s license for 12 months.
Alderson, you’ll be sentenced to imprisonment for 11 months, but for your plea it would have been 18 months.
The various considerations which operate in favour of each of you, particularly your youth, amount to good reason to suspend your sentences and they will be suspended on your entering into bonds in the amount of $100 to be of good behaviour for a period of two years…
Sentence of imprisonment

The appellant’s principal contention is that the Judge erred in deciding that it was necessary to impose a sentence of imprisonment and the Judge ought instead to have discharged him without imposing a penalty on the condition that he enter into a bond to be of good behaviour and appear for sentence if he failed to comply with a condition of the bond under section 39 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The appellant contends that the circumstances of the offending were at the lower end of the range and refers to his personal circumstances (including that the deceased was his best friend), his young age and his good character.
Subsection 11(1) of the Sentencing Act provides:
11—Imprisonment not to be imposed except in certain circumstances
(1)A sentence of imprisonment may only be imposed—
(a) if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
Under section 11(1)(a)(iv), the question is whether any sentence other than of imprisonment would be inappropriate having regard to the gravity and circumstances of the offence committed by the appellant. In R v Manunta,[11] this Court said that:
… the Court in determining pursuant to para (d) whether any sentence other than imprisonment would be inappropriate having regard to the gravity or circumstances of the offence, is required, in my opinion, to give the usual weight to the traditional purposes of sentencing, namely observation of a just proportion between the seriousness of the offending and the punishment, general deterrence, personal deterrence and rehabilitation.[12]
[11] (1989) 54 SASR 17.
[12] At 24 per King CJ (with whom the Legoe and Bollen JJ relevantly agreed).
It is a cornerstone of the justice system that witnesses deal truthfully with authorities investigating the potential commission of criminal offences and not deliberately mislead investigating authorities for the purpose of avoiding a person being investigated and prosecuted for a crime. It must be clear that, if a member of the community deliberately lies to an investigative authority for such a purpose, she or he commits a serious offence. General deterrence is an important element in fashioning an appropriate sentence for attempting to pervert the course of justice. In R v Goulding,[13] this Court characterised the offence of attempting to pervert the course of justice as a serious offence.
[13] [2007] SASC 60 at [20] per Gray J (with whom Doyle CJ and Perry J agreed).
In R v Baba,[14] Street CJ (with whom Cantor and Lusher JJ agreed) said:
The courts have, over the centuries, jealously guarded the purity and integrity of the course of justice, and this is an attitude which has by no means diminished in modern times. Present day courts remain equally zealous in guarding and protecting the course of justice.[15]
[14] [1977] 2 NSWLR 502.
[15] At 504.
In Higgins v R,[16] Wallace J (with whom Pidgeon and Rowland JJ agreed) said:
… 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 justice and, as such, deserving of a custodial punishment.[17]
[16] Unreported, Court of Criminal Appeal of Western Australia, 1990.
[17] At 11.
In R v Rogerson,[18] Mason CJ said:
It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible.[19]
[18] (1992) 174 CLR 268.
[19] At 277.
The offence committed by the appellant was serious. He deliberately told a false story to the police to deflect attention from Daniel Jones. He repeated that story four hours later in the context of providing a formal statement at the Elizabeth police station. The police were in fact deflected in their investigation and, as the Judge observed, the appellant’s false story, together with that of Daniel Jones, resulted in their losing the opportunity to subject Daniel Jones to mandatory blood alcohol testing.
There are mitigating circumstances that the appellant’s emotional and dissociative state contributed to his decision to give a false statement to the police, that he volunteered to the police some hours later that he had given a false statement, his age and good character, and his contrition and prospects of rehabilitation. On the other hand, when he admitted to having given a false story, he nevertheless gave an explanation, namely that Michael Jones had threatened that if Daniel Jones went down, so would the appellant, that he was not prepared to support on oath when giving evidence before the Judge. On the Judge’s unchallenged factual finding, the appellant’s evidence that there was no collusion leading to his false story about a dark sedan was itself false.
In all the circumstances, having regard to the gravity and circumstances of the offence, any sentence other than of imprisonment would have been inappropriate.
Length of term
The appellant contends that a starting point of imprisonment for 18 months is manifestly excessive having regard to the circumstances of the offending and his personal circumstances. The appellant relies on the same matters as are relied on for the contention that any sentence of imprisonment was not warranted.
Whether a sentence is manifestly excessive is determined by considering the maximum penalty for the offence, the seriousness of the offence by reference to other offences of its kind, and the personal circumstances of the defendant.[20] In R v Morse,[21] King CJ (with whom White and Mohr JJ agreed) said:
… This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[22]
[20] R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed).
[21] (1979) 23 SASR 98.
[22] At 99.
The parties provided to the Court details of sentences imposed for like offending. Most of the sentences were imposed by judges of the District Court, but there were a handful of decisions of this Court or other intermediate appellate courts. In many cases, the defendant was sentenced at the same time for significantly more serious substantive offending (for example rape, aggravated assault and murder) and considerations of totality made the component of the sentence for attempting to pervert the course of justice indiscernible or affected the separate sentence imposed for attempting to pervert the course of justice. The general trend apparent from these cases is that more severe sentences were generally in the range of imprisonment for two to three years and less severe sentences were generally in the range of imprisonment for six to nine months.
In the present case, although a sentence of imprisonment was necessary, the appellant’s offending fell towards the lower end of the range of seriousness. The initial false statement by the appellant was given soon after the accident and the death of his friend and while he was severely affected emotionally by those events. While it was the result of collusion and there was some degree of premeditation, it was not a decision made calmly and rationally. Although he reiterated the false statement four hours later, he repented the same day and voluntarily attended at the police station to correct it.
The appellant was only 20 years old at the time of the offence. He had a good character and had no previous convictions. The Judge found that he was remorseful and his prospects of rehabilitation were reasonable to good.
In the circumstances, a starting point of imprisonment for 18 months is manifestly excessive.
Resentencing
On resentencing, I would adopt a starting point of imprisonment for 12 months.
Under section 10C of the Sentencing Act, the appellant is eligible for a discount on account of his guilty plea entered on 16 June 2015. Subsections 10C(2) and (3) relevantly provide:
10C – Reduction of sentences for guilty plea in other cases
…
(2)If a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
(d)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
…
(f)    in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
(3)If—
(a)     a maximum reduction available under subsection (2) does not apply in relation to a defendant’s plea of guilty because the defendant did not plead guilty within the relevant period; and
(b)     the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—
(i)the court did not sit during that period; or
(ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or
(iii)the court did not list the defendant’s matter for hearing during that period; or
(iv)the court was, for any other reason outside of the control of the defendant, unable to hear the defendant’s matter during that period,
the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.
The appellant first appeared in relation to the offence of attempting to pervert the course of justice on 18 December 2013 on the information charging that offence as count 3 in the Magistrates Court. He did not plead guilty within four weeks after that date and is therefore ineligible for the maximum discount of 40% under paragraph (b) of subsection 10C(2).
Paragraphs (b) and (c) of subsection 10C(2) have no application because the appellant was not committed for trial on the charge of attempting to pervert the course of justice: the end date and start date respectively of the periods the subject of those paragraphs are defined by reference to the date of committal for trial for the offence, which does not exist.
The respondent contends that paragraph (d) applies because the appellant could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his control. However, paragraph (d) has no application for the same reason as paragraphs (b) and (c) have no application: paragraph (d) only applies when the defendant pleads guilty after being committed for trial for the offence, which did not occur in this case.
It follows that, subject to the application of subsection (3), the appellant is only eligible for a maximum discount of 10% pursuant to paragraph (b) of subsection (2).
Subsection 10C(3) vests in the Court a discretion to allow a greater discount than the maximum fixed under subsection (2) if two preconditions are satisfied. First, a maximum reduction available under subsection (2) does not apply because the defendant did not plead guilty within the relevant period: this precondition is satisfied in respect of the maximum reduction of 20% available under paragraph (c) which is not available because the appellant did not plead guilty within the period defined by that paragraph. Secondly, the only reason the defendant could not plead guilty within that period was, inter alia, because the court was unable to hear the defendant’s matter during that period for a reason outside the defendant’s control: this precondition is satisfied in respect of the maximum reduction of 20% available under paragraph (c) which is not available because the court did not list or hear a charge of attempting to prevent the course of justice because the prosecution did not tender evidence at his committal on that charge and he was not committed for trial on that charge for reasons outside his control.
It follows that the maximum available discount is 20%.
It is appropriate to allow a discount of 20% to result in a sentence of imprisonment for nine months and 18 days. It is appropriate to suspend the sentence on the same terms as the suspension granted by the Judge.
Legislative review
Section 10C is drafted on the assumption that informations are only laid in the District and Supreme Courts charging offences in respect of which defendants have been committed for trial. However, as occurred in this case, it is not unusual for the Director to lay an ex officio information in the District or Supreme Court charging an offence in respect of which a defendant is not committed. It is desirable that section 10C be amended to address this situation to avoid unintended anomalies.
Conclusion
I would allow the appeal. I would set aside the sentence imposed by the Judge.
I would re-sentence the appellant to imprisonment for nine months and 18 days, suspended on the condition that he enter into a bond to be of good behaviour until 16 November 2017.
STANLEY J: I would allow the appeal. I agree with the reasons of Blue J and the orders he proposes.