R v Wacyk

[1996] SASC 5622

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DOYLE CJ(1), MILLHOUSE(2) AND PERRY(3) JJ

CWDS
Criminal law - jurisdiction, practice and procedure - judgment and punishment - sentence - discretion to suspend - trial judge's remarks suggested that he adopted a process of comparison with another case, rather than directly considering the question - discretion miscarried - new non-parole period - sentence not to be suspended. Criminal Law (Sentencing) Act 1988s38, referred to. Varzokas v Zanker (1989) 51 SASR 277; R v Creed
(1985) 37 SASR 566, applied. Miller v Huffa (1980) 24 SASR 595; Heatlie v SA Police (1993) 172 LSJS 94; Dadleh v SA Police ((1996) 66 SASR 352); R v Warner (1989) 149 LSJS 165; R v Traino
(1987) 45 SASR 473 considered. R v Matthew (1995) 184 LSJS 63, discussed.

HRNG ADELAIDE, 21 March 1996 #DATE 16:5:1996 #ADD 4:7:1996

Counsel for appellant:     Mr R Kourakis

Solicitors for appellant:    Guy Harley

Counsel for respondent:     Mr S McEwen

Solicitors for respondent: DPP (SA)

ORDER
Publication of reasons for decision.

JUDGE1 DOYLE CJ This is an appeal against a sentence imposed by a District Court Judge. The complaint upon appeal was that the sentencing Judge should have suspended the sentence of imprisonment which he imposed.

2. At the hearing of the appeal all members of the Court considered that there was an error in the approach of the sentencing judge, and that the appeal should be allowed. The other members of the Court were of the opinion that the head sentence and non-parole period should stand, but that the sentence should be suspended upon the appellant entering into a bond in the sum of $1,000 to be of good behaviour for a period of one year. An order was made accordingly. I was of the opinion that the head sentence should stand, but that a shorter non-parole period should be fixed than the one fixed by the sentencing judge, but that there should be no order suspending the sentence.

3. What follows are my reasons for so concluding.

4. The appellant was convicted on his plea of guilty of two counts of perjury. The offences arose out of a motor car accident in which the appellant was involved. An action was brought by the driver of the other vehicle to recover from the appellant the cost of repairs to her vehicle. In the course of that action in the Magistrates Court the appellant, as he acknowledged by his plea of guilty, deliberately gave false evidence that he did not know the identity of the driver of a motor car which was ahead of his car immediately prior to the accident. The sentencing Judge found that this false evidence led the Magistrate to give judgment in favour of the appellant. The sentencing Judge remarked that one could not be surprised that the other driver involved in the accident, the plaintiff in the action in the Magistrates Court, felt humiliated by the experience and that the experience contributed to her subsequently suffering anxiety and stress. The sentencing Judge said that if the truth had been told there was no doubt that the appellant would have been saddled with the bulk, if not all, of the responsibility for the accident. The sentencing Judge said that the lie told by the appellant resulted in the Magistrate dismissing the claim against the appellant and entering judgment in the sum of $1,000 for the appellant on a counterclaim.

5. The second count related to an action which the appellant brought against the other driver to recover damages for personal injuries alleged to have been sustained in the same accident. Once again, the appellant deliberately gave false evidence. A settlement of the claim was reached resulting in a consent judgment in the sum of $1,670.70.

6. In the end, the consequence of this conduct was that the other driver's insurer incurred expenditure of almost $7,000.

7. The sentencing Judge took note of the serious nature of the offence of perjury. He made the point that perjury strikes at the administration of the system of justice. This Court has emphasised the seriousness of the offence on a number of occasions.

8. The sentencing Judge referred in particular to the decision of this Court in R v Matthew (1995) 184 LSJS 63, dealing with the giving of false evidence in proceedings in which a claim was made for damages for personal injuries allegedly suffered in a vehicular accident.

9. In that case the Court emphasised that general deterrence must usually predominate in the sentence for perjury of the sort involved here. In that case also the Court emphasised the manner in which perjury strikes at the administration of justice. There a sentence of fifteen months' imprisonment had been imposed but the sentencing Judge had suspended the sentence. On appeal, notwithstanding the reluctance with which a Court of Appeal imposes a custodial sentence upon a person who has been allowed to go free, the Court held that suspension of the sentence imposed for two acts of perjury could not be supported.

10. It was argued before the sentencing Judge that the present case was less serious than the case of Matthew (supra). A contrast was drawn between the amount which had been claimed in Matthew's case, $150,000, and the amount which the insurance company had lost in the present case, about $7,000. But the Judge was not persuaded by this. He made the point that to begin with the comparison should be between the claim made by Mr Wacyk, which he said was $30,000 (it seems it was in fact $10,000), and the claim made by Mr Matthew of $150,000. He went on to say that he did not think that the difference in the amounts claimed was of great significance. He made the point that in each case the amounts involved were considerable.

11. The sentencing Judge also made the point that in Matthew's case (supra) while there were two counts of perjury, both had been committed in the one set of proceedings. In the present case the perjury was committed in two separate proceedings. Having succeeded with his deception in one case, the appellant some time later repeated the deception. The Judge said that this was more serious offending than that of the defendant in Matthew's case (supra).

12. The sentencing Judge went on to impose a single sentence of imprisonment of one year and nine months. He fixed what was quite a short non parole period, eight calendar months.

13. He decided that he should not suspend the sentence. He took the view that the personal circumstances of Mr Wacyk carried a little more weight than did the personal circumstances of Mr Matthew. But nevertheless, clearly influenced by the decision in Matthew's case (supra), he took the view that the offending was too serious to permit him to suspend the sentence. And there lies the nub of this appeal.

14. I begin by saying that I agree in general terms with the views expressed by the sentencing Judge when considering the seriousness of the present case. First of all, perjury of this sort is a very serious offence, and does strike at the administration of justice. Secondly, in my opinion, the fact that the appellant perjured himself on two separate occasions in different Court proceedings does make the case more serious, for what it is worth, than the case of Matthew. I also agree that the difference in the amounts claimed is not of any great significance. What is significant is that in each case the amounts claimed were by no means nominal.

15. Having said that, I wish to make it clear that in my opinion it is not necessary to catalogue the similarities and dissimilarities between the present case and that of Matthew (supra). The essence of this case is that the appellant committed a serious crime, and he committed it in circumstances which, concentrating for the moment on the offence itself, display little or nothing which can go in mitigation of the offence.

16. In my opinion there is no doubt that the head sentence which the sentencing judge imposed was correct. I will return a little later to the non-parole period. As to the question of suspension, it is my opinion, after careful consideration of the sentencing remarks, that the approach which the sentencing judge took was erroneous.

17. I have already referred to the fact that the sentencing judge played close attention to the reasons of this Court in R v Matthew (supra). The concluding part of his reasons suggests to me that he made his decision whether to suspend or not by a process of comparison with the circumstances in Matthew's case, rather than by considering directly the question of suspension obtaining such guidance as might be found in what the Court said in Matthew's case. Having referred to what the Court said in Matthew's case about the approach of the Court to the offence of perjury, and having referred to a number of factual aspects of that case, the sentencing judge concluded by saying:
    "It seems to me that the facts and circumstances in your
    case are not sufficiently different from the facts and
    circumstances in Matthew's case to justify me in exercising
    my discretion in any way other than that adopted by the
    Court of Criminal Appeal in Matthew's case."

18. Perhaps the sentencing judge did not in fact reach his decision in the manner suggested above, but the manner in which his reasons are expressed suggests that he did. For that reason, at the hearing of the appeal I agreed that the Court should intervene.

19. That being so, it falls to this Court to consider the appropriate sentence.

20. I have already said that I consider that the judge's approach to the question of the head sentence was appropriate, having regard to the nature of the offence. I also would impose a sentence of imprisonment and I consider that a single sentence of imprisonment for 1 year and 9 months is appropriate.

21. I turn now to the fixation of a non-parole period. As King CJ said in R v Creed (1985) 37 SASR 566 at 568: "The non-parole period, no less than the head sentence, must reflect the punitive, the deterrent, and also the preventive purposes of punishment."

22. It is necessary for the Court to decide the minimum term of imprisonment which the appellant must serve in prison to satisfy the punitive, deterrent and preventive purposes of punishment. But now the question becomes the question of the minimum time which the appellant must spend in prison in order to satisfy these purposes. It is well established that in asking this question there is more scope for giving weight to factors personal to the offender. And, as is clear, in considering this question the rehabilitation of the offender is a matter of considerable importance. Rehabilitation is an important object of sentencing: Vartzokas v Zanker (1989) 51 SASR 277 at 279. Another important question is the prospect of the offender responding to parole by avoiding further crime.

23. Mr Wacyk is a man of advanced years, about 68 years of age, whose only previous conviction is a minor one which can be ignored for present purposes. He pleaded guilty. He suffers from ill health. He migrated to Australia many years ago. During the war years in Europe he suffered a number of traumatic experiences. Since coming to Australia he has worked long and hard. Through his hard work his three children were able to receive a tertiary education. It is fair to say that the material before the Court in relation to the appellant's background reflects considerable credit upon him.

24. The appellant and his wife are now pensioners, the appellant having retired. The pension is their only source of income. The appellant has no money in the bank or other assets.

25. In short, the appellant can be described as a man of advanced years who has an unblemished character. His life to date reflects credit upon him. He is in ill health and there is no doubt that serving a term of imprisonment will be hard for him. A psychiatric report described him as psychologically vulnerable, and likely to become profoundly depressed if sent to prison. There is little chance that he will offend again.

26. I should add, that restitution will, by virtue of an order made when the appeal was allowed, be made to the insurer which suffered loss because of the perjury.

27. In my opinion these matters, and especially the age of Mr Wacyk and his previous good character, suggest that a very short term of imprisonment will satisfy the punitive, deterrent and preventive purposes of punishment. There is also every reason to think that he will respond very well to parole, and will not offend again. It is also relevant to take into account the likely adverse effects on him of a term of imprisonment.

28. For those reasons I conclude that in this case it is appropriate to impose what I myself regard as an unusually short non-parole period. A very short time in prison in this case will serve as an adequate deterrent to Mr Wacyk, and the fact that such a sentence is imposed even in a case like his is a warning to others that few indeed can expect such leniency. I would have imposed a non-parole period of one month in this case.

29. But I would not have been prepared to suspend the sentence. Although I agree that the approach of the sentencing judge was erroneous, and although I would have imposed a much shorter non-parole period, I agree that the sentencing judge was right in saying that even in this case a term of imprisonment to be served was called for. This was a serious offence. Perjury in the course of court proceedings is usually difficult to detect and to prove, and its commission does, as has been said on many occasions, strike at the heart of the administration of justice. Significant as the appellant's age and circumstances and good record are, the fact remains that this was a deliberate and calculated offence, as is illustrated by the repetition of the perjury in a second set of proceedings. It is that in particular which leads me to say that the sentence should not be suspended. The repetition of the perjury shows that there was nothing impulsive about it. It has not been suggested that in this case once the appellant had lied he was trapped in a situation in which he had little choice but to lie again.

30. It is a sad and unfortunate fact that, from time to time, people like the appellant come before the Courts. By this I mean people of mature or advanced years, who have led previously blameless lives, but who have nevertheless committed crimes of considerable seriousness. The Courts have to be mindful of the need for sentences which reflect an appropriate degree of deterrence, and it cannot be said that a person of advanced years with an unblemished character and much to be said to his or her credit can always, for those reasons, expect to escape a custodial sentence imposed in respect of a serious offence. Once again, that is not to say that something special or exceptional has to be found before a sentence of imprisonment is suspended in such a case. It is always a matter of weighing up all factors and making what, in such a case, will always be a difficult and demanding judgment.

31. For those reasons, while I consider that a very short non-parole period is appropriate, I would not be prepared to suspend the sentence of imprisonment, and in that respect I agree that the conclusion which the sentencing judge reached was correct, although his reasons are suggestive of error.

32. It is for these reasons that while I joined in allowing the appeal I would have imposed the same head sentence, a much shorter non-parole period but would not have suspended the sentence.

JUDGE2 MILLHOUSE J For the reasons about to be given by Perry J, I thought the head sentence and non-parole period should stand but that the sentence should be suspended.

JUDGE3 PERRY J The circumstances giving rise to this appeal are set out in the judgment of Doyle CJ. I will limit myself to setting out the reasons why I differed from him as to the outcome.

2. The discretion to suspend a sentence arises under s38 of the Criminal Law(Sentencing) Act 1988. Pursuant to that section, a sentence may be suspended by the court "if it thinks that good reason exists for doing so". The section speaks for itself. It would be wrong to circumscribe those plain words by reference to any supposed formula or other gloss.

3. A suspension of sentence may be granted with respect to any offence unless the power to do so in a particular case is expressly taken away by Parliament. The exercise of the discretion miscarries if it is approached with a preconceived view that any particular offence or class of offences may only properly be met by an immediate custodial term of imprisonment.

4. For example, it has been said that persons who deliberately assault police officers acting in the course of their duty "must ordinarily expect an immediate custodial sentence"; Miller v Huffa (1980) 24 SASR 595 per Walters J at 598. But there are exceptions where a suspension may properly be imposed for such an offence; see Heatlie v SA Police (1993) 172 LSJS 94 per Mullighan J at 96, and Dadleh v SA Police (1996) 66 SASR 352.

5. R v Warner (1989) 149 LSJS 165 concerned a Crown appeal against the immediate release on recognisance of the respondent, who had pleaded guilty to a charge of possession of a trafficable quantity of heroin. The maximum sentence for the offence was 25 years or a fine of $100,000 or both. The appeal was dismissed by the Court of Criminal Appeal, notwithstanding observations such as that made by Cox J (168): "The nature of this sort of offence and the very heavy penalties that Parliament has prescribed for breaches of the drug legislation mean that it must be a very unusual case in which a suspension of sentence could be justified."

6. Those cases are examples of the fact that, notwithstanding indications given from time to time by this Court that certain offences ordinarily call for an immediate custodial term, there must always be room for the odd exception. Strictures that a given offence or class of offences will ordinarily deserve an immediate custodial term are nothing more than an indication that the need for general deterrence attaching to them will commonly outweigh idiosyncratic features attaching to the case, including considerations personal to the offender.

7. Judicial observations such as those which were expressed in Traino (1987) 45 SASR 473 per King CJ at 478 highlight the fact that perjury is a serious crime which strikes at the foundations of the administration of justice. It is said to be prevalent, although I suspect that that view flows from the perception of trial judges rather than the number of successful convictions. Be that as it may, the fact that it is difficult to detect is one of the reasons why, following conviction, the question of general deterrence looms large in the sentencing process.

8. It will never be possible to isolate any single factor in a given case as being determinative of the exercise of the discretion whether or not to suspend. The exercise of that discretion one way or the other must turn upon a careful evaluation of the overall circumstances of the particular case, which will include consideration of the circumstances of the offending and the circumstances personal to the offender. Because of this, the exercise of the discretion will rarely be assisted by making any sort of comparison with supposedly comparable cases. The "good reason" which must exist in order to support the exercise of the discretion in favour of the offender must be found within the confines of the case in hand and not by comparing it with other cases.

9. It is in this latter respect that the learned sentencing judge in this case, with respect, fell into error. It is clear, for the reasons given by Doyle CJ, that the learned sentencing judge allowed himself to be influenced unduly by too nice a comparison between this case and the circumstances of Matthew (1995) 184 LSJS 63. Given that the approach of the learned sentencing judge was in that respect tainted with error, it became necessary for this Court to reconsider the sentence which was imposed.

10. In the process of reconsidering the sentence, allowance must be given for the seriousness of this particular offence, which unquestionably was aggravated by the fact that the appellant committed perjury in different court proceedings on two discrete occasions. Bearing those circumstances and the other circumstances relevant to the fixation of the head sentence and non-parole period in mind, I am not able to find fault with the imposition of a single sentence of imprisonment of one year and nine months with a non-parole period of eight months.

11. However, it seems to me that the personal circumstances of the appellant point strongly towards the existence of a "good reason" to suspend.

12. The appellant is 68 years of age. He was born in Poland where his childhood experiences, particularly during the second world war were, to say the least, horrific. He was arrested and beaten by the Germans then in occupation of Poland, and taken to a forced labour camp in Germany from which he escaped, only to be re-arrested. He was later arrested and imprisoned by Russian agents. While being deported by them, he was able to escape and find his way to Australia.

13. He then led a virtually blameless life in this country, establishing his own business, bringing up a family and involving himself in various community organisations, including assisting in his own country's security service.

14. Courts in Australia must be astute to do their best to understand the effect upon the outlook and sense of values of migrants from central Europe whose lives were scarred in ways which it is difficult for us to understand by the systematic and degrading assault on human life and dignity perpetrated by the Nazi regime.

15. The appellant is now an old-age pensioner living alone with his wife. He is in poor health, having undergone open heart surgery in 1993. The opinion of a psychiatrist, whose report was before the learned sentencing judge, was that a "term of imprisonment for this man would be disastrous so far as his emotional health is concerned".

16. Full reparation of the money lost resulting from the perjury has been ordered. There seems little likelihood of any re-offending.

17. In my opinion, there was "good reason" to suspend the sentence.

18. For these reasons I concurred in the order allowing the appeal.