R v Triantaffillopoulas; ex parte

[1999] QCA 336

99.336

COURT OF APPEAL

McPHERSON JA DERRINGTON J MACKENZIE J

CA No 188 of 1999
THE QUEEN
v.

JOHN PERRY TRIANTAFILLOPOULAS	Respondent
ATTORNEY-GENERAL OF QUEENSLAND	Appellant
BRISBANE ..DATE 19/08/99
JUDGMENT AND BENCH WARRANT

1 190899 T19/RAG23 M/T COA199/99 DERRINGTON J: This is an appeal by the Attorney against the

sentence imposed upon the respondent, who was 27 years of
age when, on 23 July 1998, he committed perjury. The
sentence was one of 12 months imprisonment served by way of
an intensive correction order.

The circumstances of the perjury are slightly complex. The respondent was sentenced on 6 May 1998 in respect of offences of breaking and entering a dwelling-house with intent, stealing with actual violence, and using personal violence whilst armed with a dangerous weapon. That weapon was a firearm. The offence essentially consisted of a home invasion involving robbery in respect of a very substantial amount of money. The respondent was not immediately apprehended and that accounts for the delay in the sentence of him of something like three years after the commission of the offence.

At his sentencing his learned counsel indicated to the Court
that the respondent here had been persuaded to commit the
offence by the principal culprit, one Kozionas, and that the
respondent had provided the police with a statement signed
by him, together with a statement, again signed by him, of
his willingness to give evidence against Kozionas. Although
His Honour indicated that he was not applying section 13A of
the Act, His Honour, surprisingly, imposed a sentence of an
intensive correction order for 12 months on that occasion.
190899 T19/RAG23 M/T COA199/99
There were a few other matters of a minor nature in that
sentence, but it is difficult to reconcile it with a
reasonable sentence other than that considerable weight must
have been given to his willingness to give evidence against
Kozionas. The other matters might be mentioned, namely that
the respondent had had a difficult childhood with a certain
amount of trauma, that there were some favourable
references, and that a report had been provided by a
psychologist in terms which are unfortunately familiarly
sympathetic and without any serious scepticism or scrutiny.

When the time came for the respondent to give evidence against Kozionas in the committal proceedings he completely recanted his account that Kozionas was involved, and as a result the charges against Kozionas were withdrawn.

It is his perjury in that respect that formed the basis of the charge the sentence of which is now a subject of review.

The sentence was imposed by the same sentencing Judge as

sentenced him in respect of the armed robbery charge. His
Honour referred to that sentence and said that the
circumstances of the sentence would have been threatening
from the respondent's point of view because Kozionas' legal
representatives had sought and obtained permission to be

present to hear the details of the submissions made.

The learned sentencing Judge said that in the end he had
formed the view in respect of the original sentence that the
190899 T20/SJ3 M/T COA199/99
respondent was a reformed character who was willing to give
evidence against Kozionas regardless of what happened and no
discount was given in that respect. He said it would be
quite wrong for the Court to proceed on the basis that
Kozionas had committed any offence. He said the explanation
for the respondent recanting was his being fearful of the
consequences for himself and this was said to be
corroborated by incidents referred to from the Bar table by
counsel for the respondent. However, the incident
particularly referred to, namely an assault, occurred after
the perjury and there is little else to relate it to any
threat.

His Honour referred to the proposition that imprisonment was a last resort. He said that the respondent had performed well on the intensive correction order previously imposed and that was true at that time.

However, the sentence that has been imposed here fails to
reflect the seriousness of the offence. Perjury is a most
deleterious factor in the criminal justice system and it
must be regarded very seriously. That perhaps is emphasised
in a case such as this where the respondent has used the
original statement that he had made as a means of
alleviating the sentence that was to be imposed upon him in
respect of the original count.
190899 T20/SJ3 M/T COA199/99
In addition, though it is not something to be used against
him in respect of these matters, it would seem that the
rather doubtful views of the psychologist upon whom His
Honour relied, is negated to a certain extent by the
respondent's current behaviour in that he has failed badly
in respect of the current sentence that is the subject of
the present review. In fact, he failed to appear upon an
appointment that was required of him on 21 May 1999 and
proceedings are currently under way in respect of that
breach.

There is little more to be said. The gravity of the offence itself is such that the features of mitigation that were referred to and relied upon are not sufficient to justify a non-custodial order. The appropriate sentence in this respect - having regard to the circumstances that this is an Attorney's appeal and that to some minor extent the respondent may have complied with the original sentence, an appropriate sentence to be imposed is one of two years' imprisonment with a recommendation that he be eligible for parole after nine months.

McPHERSON JA: Yes, I agree with what has been said by Mr

Justice Derrington and with the order that he proposes.

MACKENZIE J: I also agree.
190899 T20/SJ3 M/T COA199/99
McPHERSON JA: The order is that the appeal is allowed and
the sentence will be varied as stated by Mr Justice
Derrington. Do we need a warrant?
DERRINGTON J: You need a warrant.

McPHERSON JA: Yes, a warrant will issue for the arrest of the respondent, such warrant to lie in the Registry for seven days or until further order.

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