R v Mahoney - [2004] NSWCCA 138

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Mahoney [2004] NSWCCA 138

FILE NUMBER(S):
60513/2003

HEARING DATE(S):

JUDGMENT DATE: 23/04/2004

PARTIES:
Crown (Appellant)
Robert Bradley Mahoney (Respondent)

JUDGMENT OF: Simpson J Bell J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0386

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:
D. Howard (Crown)
AP Cook (Respondent)

SOLICITORS:
S. Kavanagh (Crown)
S. O'Connor (Respondent)

CATCHWORDS:
Crown appeal
perjury

LEGISLATION CITED:
Crimes Act 1900 (NSW), ss327, 328
Criminal Appeal Act 1912 (NSW), s5D

DECISION:
a) appeal be granted and the sentence be set aside
b) as to count 1, the respondent is sentenced to imprisonment for a fixed term of 18 months commencing on 6 March 2005, and expiring on 5 September 2006 with a non-parole period of 9 months
c) as to count 2, the respondent is sentenced to imprisonment for a fixed term of 2 years (to be served concurrently with the sentence imposed in relation to count 1) commencing on 6 March 2005, and expiring on 5 March 2007 with a non-parole period of 12 months expiring on 5 March 2006.

JUDGMENT:

IN THE COURT OF ex tempore

CRIMINAL APPEAL

60513 of 2003
Simpson J
Bell J
Shaw J
23 April 2004

R v Robert Bradley Mahoney

Judgment

SIMPSON J: I agree with the orders proposed by Shaw J and for the reasons given.
BELL J: I also agree with Shaw J.
I should add that I am mindful that the sentencing order proposed produces an overall sentence that does not give the respondent the benefit of the finding of special circumstances made by Nader ADCJ.
This result flows from the need to impose a real measure of punishment upon the respondent in respect of the subject offences, but consistently with the principles that govern Crown appeals, the sentences for these offences must necessarily be towards the lower end of the range.

SHAW J: In this appeal, brought pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions has argued a Crown appeal against the sentence imposed by her Honour Judge English at the Newcastle District Court on 5 December 2003. On 3 December 2003, the respondent to this appeal (Mr Mahoney) adhered to pleas of guilty which had been earlier entered before the court on 22 October 2003 in relation to two counts of “perjury with intent to procure conviction or acquittal” which offences were committed in the course of giving evidence on oath before the District Court on 9 February 2001.
The perjury offences in question were grounded upon the provisions of s 328 of the Crimes Act 1900, which prescribes a maximum penalty of imprisonment for fourteen years. By way of contrast, perjury simpliciter under s 327 of the Crimes Act 1900 has a prescribed maximum penalty of ten years imprisonment.
Her Honour sentenced the respondent on 5 December 2003, in relation count 1, to a period of imprisonment for a fixed term of 12 months, expiring on 4 December 2004, and in relation to count 2 imprisonment for a fixed term of 15 months, expiring on 4 March 2005. No non-parole periods were set because the sentences were subsumed by the sentences being served on other matters. Given that pleas of guilty were entered at the earliest opportunity, the sentencing judge appropriately allowed a discount of 25% for each count.
In her remarks on sentence, her Honour carefully identified the objective facts of the offences, and also adverted to some subjective features relating to the respondent. As to those subjective factors, it was noted that he was 40 years of age at the time of sentencing, had a track record of relatively minor offences between 1979 and 2001 involving inter alia, possession of a prohibited drug, driving offences, offensive behaviour, possession of an unlicensed firearm and, more seriously, the supply of a prohibited drug in a commercial quantity, for which offence Mr Mahoney was imprisoned for 4 years commencing on 7 March 2003 and expiring on 6 March 2007. The respondent did not give evidence before the sentencing judge and, understandably, her Honour thought it difficult to be satisfied as to the extent of any contrition apart from the early plea of guilty. Nor was her Honour able to make any findings as to the prospects of rehabilitation.
I now turn to summarise the nature of the offence that was committed by the respondent. The offence of perjury involves a person wilfully giving false evidence or testimony while under an oath or an affirmation. The aggravating features of the present charges involve the allegation, accepted by virtue of the plea of guilty, that the perjury was committed with the intention of procuring acquittal.
The perjury occurred during a trial before the District Court in relation to charges to the effect that the respondent was guilty of the offences of supply and manufacture of a commercial quantity of methylamphetamine. There was an aborted trial at the Newcastle District Court which commenced on 8 February 2001 during which the respondent gave sworn evidence that he had purchased the drugs found in his possession and that he was using 5 – 6 grams per day himself. The new trial commenced before Nader ADCJ on 3 March 2003 at the Newcastle District Court. Again, the respondent gave sworn evidence in the defence case. In the course of that evidence the respondent said that he had obtained the drug in the course of an armed robbery at gunpoint at the flat of a Mr Andrews in Belmont South. It was said that the robbery had occurred in late June or early July 1999, and that he had told the police about his role in manufacturing the drug because of coercion on the part of Mr Andrews, namely that Mr Andrews would “get him” if he told the truth. Evidence later emerged that Mr Andrews had died of a drug overdose on 19 May 1999. In evidence during that trial, the respondent conceded that he had lied in the first trial as to having bought the drugs and in relation to the extent of his use of the drug. In that trial, the respondent was questioned in cross-examination about the evidence he had given at the first trial that he was using 5 or 6 grams a day of amphetamine. He was asked:
…of course you’d now say that those things that you said on your oath on that occasion were lies, is that right? Answer; yeah.
At the second trial, it also emerged that the respondent had lied about having bought the drugs. That assertion was contradicted by express evidence under oath in the second trial that the acquisition of the drugs had been the result of an armed robbery.
The result of the second trial was a conviction on the supply charge, and an acquittal on the manufacturing charge, resulting in a sentence of 4 years imprisonment, expiring on 6 March 2007, with a non-parole of 2 years expiring on 6 March 2005.
The principle is well established in our administration of the system of justice that a false statement on oath or affirmation given before a court is regarded a serious offence, which ordinarily should result in a significant penalty of full-time imprisonment. Perjury undermines and subverts the system of justice. Unless corrected, it can lead the courts into error and injustice. Such conduct on the part of witnesses or parties giving evidence on oath or affirmation in our courts needs to be deterred. This end can only be achieved by punishment, which is real and substantial, as distinct from some penalty which is merely nominal or illusory.
In R v Bulliman (unreported, CCA, 25 February 1993) Adadee J, with whom Gleeson CJ and Hunt CJ at CL agreed, said that when persons who make false statements in court are brought to justice they should be severely punished, irrespective of the outcome of the proceedings in which the false evidence was given, his Honour went on to say:
False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the basis of it. Justice inevitably suffers, whatever be the motive for making of false statements on oath and whatever be the circumstances in which the offence of offences are committed.
The purpose of an appropriate sentence in this class of case is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case.
In R v Anthony Aristodemou (30 June 1994, NSWCCA, unreported) Badgery-Parker J said:
Any person who commits an offence of perjury or false swearing in the cause of judicial proceedings or in proceedings such as a Royal Commission or and [Independent Commission Against Corruption] ICAC Inquiry should do so in the clear understanding that if his offence is detected he will go to gaol except in very particular circumstances. (pp 2,3)
His Honour thought that the period of 2 months imprisonment imposed, in the context of a maximum penalty of 5 years was excessively lenient. Carruthers and Finlay JJ agreed.
In some cases there can be discerned extraordinary and compelling subjective factors, including long delay in prosecuting the offence and other unusual circumstances which might justify the imposition of a non-custodial penalty: Chapman (Craig) (unreported NSWCCA 21 May 1998) per Simpson J. However, ordinarily, as I have said, a full-time custodial sentence for the offence of perjury is required. The maximum penalty imposed or prescribed by the legislature of 14 years for these offences is itself an indicator as to how seriously the Parliament takes the commission of the crime of false evidence given to a court. Clearly, the respondent was seeking to manipulate the criminal justice system in his own interests and to avoid punishment for the crimes that he had committed.
The Crown’s argument on appeal fairly and correctly accepts that her Honour, in the remarks on sentence, accurately identified the principles relevant to the appropriate sentencing required in the matter, including the important factor of specific and general deterrence which, as her Honour said, “looms large” in the sentencing of offences of this kind. The Crown also accepts that the length of the 2 sentences “appears” to be adequate in the circumstances of the case. I agree with these concessions.
However, the nub of the Crown’s appeal is to emphasise that the sentences for perjury imposed upon the respondents were not only concurrent with each other, but also entirely concurrent with the non-parole period of the sentence already being served for the precise offence in respect of which the respond perjured himself at the aborted first trial. Because of the sentencing judge’s determination as to concurrence the Crown argues that the respondent has escaped punishment for perjury, notwithstanding the seriousness of those crimes. In other words, there is no additional penalty flowing from the perjury. Counsel for the respondent accepts this, as he must. The respondent concedes that the effect of her Honour’s decision to make the sentences run entirely concurrently with that of the supply matter had resulted in the respondent receiving “no effective punishment for the perjury offences.” Nevertheless, the respondent submits that the court in the exercise of a residual discretion should dismiss the Crown appeal and has provided comprehensive reasons as to why it is said that course should be taken. I accept entirely the soundness of the submissions on the part of the respondent emphasising the restrictive approach that should be taken to Crown appeals. Reference is made to the observations of the High Court in Everett v The Queen (1994) 181 CLR 295 at 305 where Brennan, Dean, Dawson, and Gaudron JJ said:
….the deep rooted notions of fairness which underline the common law principle against double jeopardy required that a Court of Criminal Appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case.
Reference was also made to the observation of Spigelman CJ in R vBaker (2000) NSWCCA 85 where his Honour said:
The authorities make it clear that Crown appeals should be rare. It may be the present practise does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.
I also accept the principle articulated by Wood CJ at CL in R v Bavadra (2000) 115 A Crim R 152 [46] that what is required as a remedy on appeal by this court is:
the least sentence that could properly have been imposed at the time.
The respondent says that the perjury involved a pathetic attempt to mount a defence to an overwhelming case of deemed supply. It was, the respondent says, a very “ragged piece of patchwork.” This may be true, but it involved a deliberate and wilful untruth given to a court in an endeavour to escape conviction. It is further said that the evidence was rambling and incoherent. It was also characterised in the respondent’s submission as desperate and irrational. All of this may be true, but it seems to me not to fundamentally detract from the seriousness of the offence. There was an admission of perjury in the evidence at the second trial, and there was an early plea of guilty. However, it seems to me that the sentencing judge has taken account of those matters in determining the length of sentence which was appropriate.
The error of principle, in my view, is a failure to provide any real penalty and therefore any real deterrent in relation to the crime of perjury, which was separate and distinct from the crime of supplying illegal drugs.
Although the sentencing judge expressly directed that the sentence should be served concurrently with the sentences then being served, she did not advert to the difficulty that no effective penalty was being imposed with respect to the perjury convictions.

In those circumstances I would propose that this Court engage in a re-sentencing process as a result of the Crown appeal.

I would take the view in the present case that special circumstances do exist essentially for the reasons expressed by Nader ADCJ in relation to the drug offences:
I have already said that the offence is serious. Excessive mercy to the offender would be misguided.
In ordinary circumstances I would sentence the offender to 5 years imprisonment. However, by reason of the fact that he is likely to have to serve his sentence in protection, I reduce that sentence to four years imprisonment. He will have to serve two years of that sentence before being eligible for parole. That will allow two years for him to be assisted and supervised in society after release. I am conscious of the fact that the Crown argued, with some cogency, that the evidence that he will need much help with respect to the drug abuse is doubtful. But I proceed on the basis that in my estimation he will need a lot of guidance to lead him back to being a law abiding citizen if he is ever to become one.
Thus, I propose orders as follows:
a) appeal be granted and the sentence be set aside;
b)as to count 1, the respondent is sentenced to imprisonment for a fixed term of 18 months commencing on 6 March 2005, and expiring on 5 September 2006 with a non-parole period of 9 months;
c)as to count 2, the respondent is sentenced to imprisonment for a fixed term of 2 years (to be served concurrently with the sentence imposed in relation to count 1) commencing on 6 March 2005, and expiring on 5 March 2007 with a non-parole period of 12 months expiring on 5 March 2006.
SIMPSON J: The orders of the Court will be as proposed by Shaw J.

**********

LAST UPDATED: 26/05/2004