R v Waskin - [2003] NSWCCA 96

Reported Decision:
141 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: R v Waskin [2003] NSWCCA 96

HEARING DATE(S): 3 February, 17 February 2003

JUDGMENT DATE:
9 April 2003

JUDGMENT OF: Giles JA at 1; Simpson J at 2; Smart AJ at 46

DECISION: (i) appeal against conviction dismissed; (ii) Crown appeal against sentence allowed, sentence quashed; (iii) in lieu thereof the appllant sentenced to imprisonment for a fixed term of eighteen months to be served by way of periodic detention.

CATCHWORDS: appeal against conviction - Crown appeal against inadequacy of sentence - intending to induce potential witness to give false evidence in a judicial proceeding - periodic detention

LEGISLATION CITED: Crimes Act 1900 ss 315, 323, 324, 556(a)
Listening Devices Act 1984
Crimes (Sentencing Procedure) Act 1999 s66

CASES CITED: The Queen v M (1994) 181 CLR 487
Kingswell v The Queen (1985) 159 CLR 264
R v Lee, unreported, NSWCCA, 6 December 1994
R v Zreika[2000] NSWCCA 75
R v Gian [2001] NSWCCA 276
R v Rogerson (1992) 65 A Crim R 530
R v Karageorge (1998) 103 A Crim R 157

PARTIES :
Crown - Respondent
Mamdouh Waskin - Appellant

FILE NUMBER(S): CCA 60007/03

COUNSEL: DML Woodburne - Crown
M King - Appellant

SOLICITORS: SE O'Connor - Crown
Dennis & Company - Appellant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1088

LOWER COURT
JUDICIAL OFFICER : Viney DCJ

60445/02; 60007/03

GILES JA
SIMPSON J
SMART AJ
9 April 2003

REGINA v Mamdouh WASKIN

Judgment

1 GILES JA: I agree with Simpson J.

2 SIMPSON J: On 5 August 2002 the appellant was arraigned in the District Court on an indictment which contained two alternative charges. The first was laid under s323(a) of the Crimes Act 1900, alleging that, between 16 and 26 August 2000, he had suggested to Ms Rebecca Nash that she give certain false information to police with intent to induce Ms Nash, a person to be called as a witness in judicial proceedings, to give false evidence in those proceedings. The alternative charge, laid under s315 of the Crimes Act, alleged that, between the same dates, the appellant did an act suggesting to Ms Nash that she give false information to police with intent thereby to hinder the investigation of a serious indictable offence committed by another person.

3 The appellant entered a plea of not guilty to each charge and a trial proceeded. At the conclusion of the Crown case, on 8 August 2002, at the direction of the trial judge, the jury returned a verdict of not guilty on the alternative charge. The reason for this concerned the manner in which s315 is worded. The section creates an offence of acting with the intention of hindering the investigation of a serious indictable offence committed by another person; that is, a person other than the person accused under s315. The essence of the Crown case against the appellant was that he had acted with the intention of hindering…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Waskin

Details

AGLC: R v Waskin [2003] NSWCCA 96
Case: [2003] NSWCCA 96
Decision Date: 9 April 2003

CaseChat Overview and Summary

In this case, the respondent, Waskin, was convicted of attempting to pervert the course of justice by seeking to induce a potential witness to provide false evidence. The conviction was the result of an appeal by the Crown against the inadequacy of the sentence imposed by the lower court. The respondent was sentenced to two years' periodic detention with a non-parole period of 12 months. The Crown appealed on the grounds that the sentence was manifestly inadequate. The Court of Appeal, having considered the relevant factors, allowed the appeal and substituted a sentence of three years' imprisonment with a non-parole period of 18 months.

The legal issues before the Court of Appeal involved the principles guiding the assessment of the adequacy of a sentence in cases where the offence involves an attempt to pervert the course of justice. The Court considered the gravity of the offence, the respondent's culpability, and the need to deter similar conduct. The Court also examined the proportionality of the original sentence in light of the established sentencing principles and the objectives of sentencing for such offences.

The Court of Appeal found that the original sentence of two years' periodic detention with a non-parole period of 12 months did not adequately reflect the seriousness of the offence. The Court considered the offence to be of high culpability due to the attempt to influence a witness in a judicial proceeding, which undermines the administration of justice. The Court held that the original sentence did not sufficiently account for the need to deter similar conduct and did not adequately reflect the gravity of the offence. The Court substituted a sentence of three years' imprisonment with a non-parole period of 18 months, finding it to be more proportionate to the offence and its circumstances.

The Court of Appeal allowed the Crown's appeal and substituted the original sentence with a sentence of three years' imprisonment with a non-parole period of 18 months. The Court emphasized the importance of ensuring that sentences for offences attempting to pervert the course of justice adequately reflect the gravity of such offences and serve to deter similar conduct.

Orders