R v Sultan - [2005] NSWCCA 461

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Sultan [2005] NSWCCA 461

FILE NUMBER(S):
2005/2261

HEARING DATE(S): 2 December 2005

JUDGMENT DATE: 02/12/2005

PARTIES:
Regina v Fouad Sultan

JUDGMENT OF: Grove J Sully J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1211

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

COUNSEL:
S. Odgers SC (Applicant)
D. Arnott SC (Respondent/Crown)

SOLICITORS:
Peter Ash (Applicant)
S. Kavanagh (DPP)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
APPROACH WITH INTENT TO INFLUENCE JUROR
ABSENCE OF SINISTER CONNOTATION IN INTENDED COMMUNICATION TO JUROR TO LISTEN TO EVIDENCE CAREFULLY
OFFENCE COMMITTED WHETHER SINISTER OR BENIGN
APPROPRIATE SENTENCE SHOULD REFLECT APPLICABLE CHARACTERISTIC

LEGISLATION CITED:
Crimes Act 1900
Jury Act 1977

DECISION:
APPEAL AGAINST SENTENCE ALLOWED
APPELLANT RESENTENCED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2261/05
GROVE J
SULLY J
HOWIE J
2 December 2005

REGINA v FOUAD SULTAN

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Sorby DCJ. Following trial, the applicant was convicted on a count charging that on 29 July 2003 he approached and spoke to Kevin Wayne Pulver with intent to influence Lesley Joy Pulver in her conduct as a juror in a trial then currently proceeding in which the applicant was one of the accused, an offence contrary to s 323(b) of the Crimes Act 1900 for which a maximum penalty of seven years imprisonment is prescribed.
Sorby DCJ also sentenced the applicant following his plea of guilty to harassing a (former) juror on 10 September 2003 for the purpose of obtaining information about the deliberations of a jury contrary to s 68A of the Jury Act 1977. There is no application in respect of this sentence, but it is necessary to refer to it to provide context to the sentence in respect of the other offence.
As at 29 July 2003, the applicant was on bail during the currency of a trial before Goldring DCJ and a jury in which he and others were charged with breaking entering and stealing in circumstances of special aggravation. At about 1.30am that day, the applicant entered a service station where Mr Kevin Pulver was on duty. A conversation took place. At the trial of the s 323(b) charge there was dispute as to the exact content of this exchange.
In his summing-up his Honour told the jury that it was not in dispute that the applicant said in relation to Mr Pulver’s wife “Ask can she listen to the evidence carefully”. Mr Pulver’s wife Lesley was in fact a juror. He later referred to the evidence of Mr Pulver:
“He said the accused approached the counter and said:
‘Are you Michelle’s father?’
Mr Pulver said he replied, ‘Yes’. The accused then said, Mr Pulver said:
‘I believe your wife is on the jury’.
Mr Pulver said he then said:
‘Whoa, whoa. This is a matter that should not be discussed’.
Mr Pulver said the accused then told him:
‘There is nothing to worry about. Just ask your wife to listen to the evidence carefully’.
Mr Pulver said nothing more but he said he escorted the accused to the door of the shop. Mr Pulver told you that as he escorted the accused to the door of the shop the accused reiterated what he had said earlier. Mr Pulver told you that there was no intimidation or threat made by the accused. Mr Pulver told you that he was not aware at that time that the accused was on trial and that his wife was a juror on that trial.”
His Honour later summarised the evidence of the applicant as follows:
“The accused told you that he walked into the service station shop and went straight to the fridge area to get milk. He denied at any stage saying to Mr Pulver, ‘Are you Michelle’s father?’ The accused said Mr Pulver said, ‘Hello’ or something, to which he replied:
‘I’m not bad. I’ve just started a trial’.
The accused said he thought he might have been nervous or stressed out at the time. The accused said Mr Pulver then surprised him by saying:
‘I think my wife has been selected or empanelled as a juror’.
The accused said he then replied:
‘If she is on my trial, can she listen to the evidence carefully’.
The accused told you that he intended nothing by this remark, as he did not know if Mrs Pulver was on the jury of his trial. The accused told you that Mr Pulver responded by saying:
‘Whoa,whoa. We should not be talking about this’.
The accused said he then paid for what he had chosen and left the shop. The accused said he did not repeat the phrase to which I have referred as he left the shop”.
In his remarks on sentence Sorby DCJ said:
“It was agreed between the parties that the following words were spoken by the prisoner to Mr Pulver, ‘I just want you to ask your wife to listen to the evidence carefully’. Whilst there is no dispute as to these words being spoken by the prisoner, the context in which they were spoken was in dispute”.
The gravamen of the offence was the intention of the applicant to influence Lesley Pulver in her conduct as a juror. As well as the extract which I have quoted his Honour canvassed the contradictions between the evidence of the applicant and Mr Pulver. He did this in connection with submissions about whether the approach by the applicant to Mr Pulver was planned. His determination of the issue is unclear and the Crown has submitted that his remarks should be interpreted as not finding whether the approach was planned or unplanned. Counsel for the applicant acknowledged that the submission was persuasive. I consider this court should act in accordance with that submission.
The applicant did not approach the juror Mrs Pulver and his act in approaching Mr Pulver only became criminal upon a finding that he intended in that approach to influence her. It follows that it must be found that he intended Mr Pulver to communicate what he had said to his wife. The judge observed that “to influence a juror performing this function (determining whether guilt has been proved) by a person directly involved in the trial, here an accused person facing trial is in my view an objectively serious act” and expressed the conclusion that full time custody and a further period of parole was appropriate.
It should not be overlooked that the Crown case did not contend that there was a threat involved or a suggestion to be passed to Mrs Pulver that she act in any way improperly.
No evidence can be pointed to which could found a conclusion that Mrs Pulver was in fact influenced. There was some exchange with counsel after conviction, (Transcript 19 August 2005) in which his Honour stated that he understood from some notes that Mr Pulver did tell his wife about it. This was confirmed by the Crown Prosecutor which apparently prompted his Honour’s comment that “it may well have influenced the outcome”. Counsel for the applicant responded that there was some transcript from “the first trial” that she, (Mrs Pulver) had taken a course of action in her own mind long before her husband visited her with the information. The Crown added that they (the jury) had been deliberating for a day and a half and his Honour said that he did not know that, hence that circumstance was apparently not in evidence in the trial.
The first argument of the applicant in this Court is that his Honour failed to assess the nature of the influence which the applicant intended in relation to Mrs Pulver. The Crown submits that this is another way of expressing motive, but I do not perceive this to be so. Motive would relate to why the applicant acted, and his Honour appears to have accepted the Crown concession that he did not act with the purpose of securing a favourable result for himself.
On any view of the applicant’s action in speaking to Mr Pulver and, rejecting the applicant’s version of the exact content, the influence intended was comprehended in an adjuration to listen to the evidence carefully.
As Sorby DCJ instructed the jury, the structure of the section is such that the offence is complete upon any act accompanied by the intended influence on a juror. No doubt it was the intention of the legislature to ensure that no influence of any sort would be intended to be brought to bear on a juror other than in the course of regular proceeding. But on the issue of penalty, it must be germane to assess whether the intended influence was sinister or otherwise and to what degree.
The sentencing judge rightly recognised the importance of the protection of jurors from outside influence, but made no assessment of the quality of the influence intended by the applicant in his act of speaking to Mr Pulver.
Although exchanges within the jury room and their deliberations are, except for exceptional reasons, quarantined from examination, it offers a curious paradox in this case that if it were known that a juror did not listen carefully to the evidence there would be reason for disturbance to say the least. If however a juror were to hearken to the applicant’s intended adjuration to listen carefully to it, the duty would be, in that respect, meticulously fulfilled.
The intention of the legislature in enacting s 323(b) was clearly to proscribe any act intended to influence a jury in any way whether benign or not. But it does not derogate from acknowledgement of that intention to assess the seriousness of an offence against the presence or absence of sinister connotation.
In my view a custodial sentence of twelve months non parole period with a parole term of ten months was manifestly excessive for this offence where the intentional ingredient was of the nature of an exhortation to perform the duty of the juror. That is not to say that the intended act prohibited by the statutory provision does not merit punishment. As I have said the provision criminalises any act accompanied by the requisite intention to influence.
I have mentioned the offence contrary to s 68A of the Jury Act. This involved another juror in a trial before Goldring DCJ who, after discharge of the jury which was unable to agree, and some weeks thereafter, was coincidentally at Wollongong Court at the same time as the applicant and one of his co-accused. The juror was in attendance to answer a charge relating to the driving of a motor vehicle.
In short, the applicant and his co-accused separately sought and received information from that juror concerning the division between the membership of the panel which had not agreed. The former co-accused pleaded guilty to a similar offence and was placed on recognisance to be of good behaviour by Phelan DCJ who observed that he had been informed that since the inconclusive trial, a nolle prosequi had been determined.
The applicant was sentenced to imprisonment for a fixed term of two months for this offence, but it was ordered to be served concurrently with the first two months of the non-parole period for the s 323(b) offence. That sentence has been served and is expired and, as I have noted, no appeal is pursued. I do not need to say anything further about it.
The ancillary orders specified the commencement date of 19 June 2005 for both sentences. His Honour found special circumstances for departure from the statutory formula of proportion between non-parole period and total term in the applicant’s favour. I would adopt that finding and his Honour’s reasons. I would also adopt his Honour’s findings concerning the subjective matters relevant to the applicant.
As I have indicated, there should be an unmistakable reflection in sentence of both personal and general deterrence against any act intended to influence a juror, but, having regard to content of the applicants particular action in this case, release in the near future would be appropriate.
I do not consider that it is necessary to cumulate all or part of the sentence for the offence against the s 68A offence against the Jury Act. Sorby DCJ described it as at the lower end of the scale. Indeed, when told of the facts, (Transcript 22 June 2005 @ p 4) he inquired “how is that an offence?” and was informed accurately of the provision and that “a short number of years ago it wouldn’t have been offence but now it is”. It was accepted that the inquiry was inspired simply by curiosity as to how the jury may have divided and not for any improper motive.
I would propose the following orders:
(1) application for leave to appeal against sentence granted and appeal allowed.
(2) Sentence for the offence contrary to s 323(b) of the Crimes Act 1900 quashed and in lieu thereof the applicant sentenced to imprisonment consisting of a non-parole period of six months to commence on 19 June 2005 and expire on 18 December 2005 with a parole term of six months commencing on 19 December 2005 and expiring on 18 June 2006.
(3) The applicant ordered released to parole on the 18th of this month
SULLY J: I agree with Grove J
HOWIE J: I also agree
GROVE J: The orders of the Court will be as I have proposed.

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LAST UPDATED: 10/02/2006