R v Ozdemir

[1993] QCA 463

IN THE COURT OF APPEAL [1993] QCA 463

SUPREME COURT OF QUEENSLAND	C.A. No. 361 of 1993
Brisbane [R. v. Ozdemir]

T H E Q U E E N
v.

ALI OZDEMIR (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

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THE CHIEF JUSTICE
MR JUSTICE PINCUS
MR JUSTICE DAVIES

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J udgment delivered 22/11/1993

REASONS FOR JUDGMENT - THE COURT
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APPEAL ALLOWED. SET ASIDE THE SENTENCE IMPOSED BELOW. SUBSTITUTE THEREFOR A SENTENCE OF TWO YEARS' IMPRISONMENT WITH A RECOMMENDATION THAT THE RESPONDENT BE ELIGIBLE FOR PAROLE AFTER SERVING NINE MONTHS OF THAT SENTENCE. A WARRANT FOR THE ARREST OF THE RESPONDENT IS TO ISSUE.

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CATCHWORDS: CRIMINAL LAW - SENTENCE - Attorney's appeal against a wholly suspended sentence of two-and- a-half years for civil perjury - Whether s. 9(2)(a) Penalties and Sentences Act 1992 requires non-custodial sentence where substantial custodial term would previously have been warranted - Serious nature of offence and need for deterrence - Sentence of two years with recommendation after nine months substituted

Penalties and Sentences Act 1992, s. 9(2)(a)

Counsel:	Mr P Callaghan for the Appellant
R. Hanson Q.C. with him Mr M. Johnson for the Respondent
Solicitors:	Director of Prosecutions for the Appellant
Dennis McCormack & Associates for the Respondent
Date(s) of Hearing:	11 November 1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND	C.A. No. 361 of 1993
Brisbane
Before	The Chief Justice Mr Justice Pincus Mr Justice Davies

[R. v. Ozdemir]

T H E Q U E E N
v.

ALI OZDEMIR (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22/11/1993

This is an appeal by the Attorney-General against a sentence imposed in the District Court at Bundaberg on 9 September last.

On that date the respondent was sentenced to two and a half years' imprisonment, such sentence being suspended wholly for a period of four years, on two counts of perjury, both on 21 November 1990, during the course of giving evidence in an action instituted by him for personal injuries.

The respondent's personal injuries claim arose out of an alleged accident which he said occurred 27 December 1986 when a car reversed down a driveway and struck him. His claim for injuries arising out of that accident included a claim for loss of earning capacity both before trial and in the future.

The false testimony in respect of which, after a trial, the jury found him guilty of perjury was:

1.    That he had not suffered any injury since the incident on 27 December 1986 which prevented him from working for any period of time; and

2.    That he did not work for anyone in the year 1990.

As to the first of these, it was established that the respondent had suffered a back injury in June 1987 while lifting a tractor tyre and medical certificates were issued in respect of this injury so that he could claim on insurance for loss of income. It was established also that he lodged a claim on AGC Insurance for such loss.

As to the second, it was established that he had in fact worked for two different employers in 1990.

Although the learned sentencing judge said that it was not possible to say with any confidence what effect the respondent's false testimony would have had upon any award of damages which may have been made, he also said that he was not persuaded that any difference was minimal. Upon discovery of the false testimony, the respondent's action was dismissed by consent although, no doubt pursuant to a compromise reached, the defendant by election insurer agreed to an order for payment of the respondent's solicitors' costs at a fixed sum.

Contrary to the respondent's defence that the perjury was unintentional, it was plainly deliberate and with the intention of personal gain. Furthermore, the respondent's plea of not guilty and his conduct of the trial indicated an absence of remorse.

There can be no doubt of the seriousness of the offence of perjury. As has often been said and as the Crown Prosecutor submitted below, it strikes at the heart of the justice system.

The learned sentencing judge recognised this and expressed the view that prior to the commencement of the Penalties and Sentences Act 1992 the respondent would have been sentenced to imprisonment for a substantial period. He had been referred by the Crown Prosecutor to R. v. Johnson; ex parte The Attorney- General (C.A. No. 360 of 1989) and R. v. Wood; ex parte The Attorney-General (C.A. No. 271 of 1991), in both of which cases convicted perjurers had been sent to jail. In the first of them a 52 year old man with no prior convictions, whose perjury was similar to that in this case, was sentenced on appeal to two years' imprisonment. His psychiatric condition which would render him vulnerable in jail was a prominent factor in the recommendation which the Court of Criminal Appeal made that he be eligible for parole after seven months. In the second, a 49 year old woman with no previous convictions was sentenced on her plea of guilty to one year's imprisonment with a recommendation for early parole after serving three months. She had admitted her perjury at the time it occurred and it was of a less severe kind than that considered here. See also R. v. Back (C.A. No. 289 of 1992).

However, his Honour said:

"I must now proceed on the basis that a sentence which allows you to stay in the community is preferable and that a sentence of imprisonment should only be imposed as a last resort. ...
... I have been given two examples of sentences imposed for perjury since the commencement of the Act, and it would seem that the sentencing judges have sought to act upon the principle of community rehabilitation with imprisonment as a last resort. There is no suggestion of an appeal against those sentences.

I propose to endeavour to carry out the modern
sentencing principle."

His Honour then pronounced the sentence to which we have already referred.

The provision of the Penalties and Sentences Act which his

Honour had in mind was plainly s. 9(2)(a) which provides:

"(2) In sentencing an offender, a court must have

regard to -

(a) principles that -

(i) a sentence of imprisonment should only

be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable; ..."

It may be accepted that paragraph 9(2)(a) like other provisions in s. 9 displays some intention to induce changes in the approach of courts in identifying the most suitable sentences for imposition in particular cases or at least to ensure the universal application of what were previously widely accepted practices in sentencing. The paragraph may be viewed as encouraging the adoption of a more lenient approach in appropriate cases but it cannot mean that, where formerly a type of offence was regarded as ordinarily meriting a term of imprisonment, this is now necessarily not so. There is no legislative statement or implication that non-custodial sentences should be imposed or even usually imposed in perjury cases and nothing in the Act renders inapplicable the previous observations of courts concerning the seriousness with which perjury cases should be regarded and the need to impose effective deterrent sentences on conviction for perjury. Perjury is, in our view, an offence of such a serious kind that it would ordinarily require the imposition of a term of imprisonment; anything less is unlikely to be a sufficient deterrent.

Accordingly, in the present case we think that his Honour was wrong to impose a wholly suspended sentence and we would impose in lieu a sentence of two years' imprisonment.

However, notwithstanding the respondent's lack of remorse there were factors in this case which, in our view, justify a recommendation being made that he be eligible for release on parole earlier than would otherwise be the case. He is 49 years of age and until the commission of these offences had led a blameless life. Moreover, although it is no excuse for their commission, he had recently undergone severe financial hardship resulting in his bankruptcy. More importantly, he was a highly respected member, indeed a leader, of the Turkish community in Australia as a number of testimonials before the Court indicate.

He also has a wife and young family who are dependent on him for their financial support. These factors together, in our view, justify the recommendation which we propose to make that the respondent be eligible for parole after having served nine months of the above sentence.