R v White (No 4) - [2022] ACTSC 79

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v White (No 4)
Citation:	[2022] ACTSC 79
Hearing Dates:	19 April 2022
Decision Date:	19 April 2022
Before:	Elkaim J
Decision:	See para [50]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – perjury
Legislation Cited:	Criminal Code 2002 (ACT) s 703
Cases Cited:	R v Nguyen [2004] NSWCCA 332; 149 A Crim R 343 R v Wright; R v Edgerton [2021] ACTSC 12
Parties:	The Queen (Crown)
Scott John White (Offender)
Representation:	Counsel
A Williamson (Crown) J Purnell SC (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender)
File Number:	SCC 188 of 2020
ELKAIM J:

1.       On 29 November 2021 the offender came to trial before me and a jury, facing two counts of perjury in an indictment dated 8 October 2021. The jury returned a verdict of guilty on the second count.
2. The maximum penalty for committing perjury, contrary to s 703 of the Criminal Code 2002 (ACT), is 7 years imprisonment or $112,000 or both.
3.       The jury could not agree on the first count. Because of earlier indications of disagreement, I discharged the jury in respect of this count without requiring any further deliberation.
4.       Immediately after the discharge, the Crown indicated that it would not proceed again with Count 1.
5.       Count 2 concerned evidence given in the Magistrates Court on 23 July 2015. This is a transcript of the relevant evidence:
You at a point in time commenced a sexual relationship with Ms Parkinson?.... That’s
correct.
In relation to that relationship did you use condoms?....No.
Are you certain in relation to that?....Yes.
How are you able to be so certain in relation…..?..... I had a vasectomy in 2007 and we’ve
never used condoms at all.
6.       The offender had previously told a police officer (Mr Corcoran) that condoms had been used in his relationship with Ms Parkinson when they had engaged in anal sex.
7.       Mr Corcoran had told the offender that this use of condoms was not relevant because it was related to events that had occurred sometime before the period of time being investigated.
8.       In giving his evidence before the jury the offender conceded that his answers in the Magistrates Court were incorrect, but he defended his actions on the basis that he had not been reckless or had been answering the questions while harbouring under a mistake of fact. He referred to the following considerations as supporting his defence:

(a) Based upon the attitude that had been taken by Mr Corcoran as to relevance, he did not consider it relevant to include the historical use of condoms in his answer.
(b) He believed that the questions he was being asked related only to penile- vaginal sex.
(c) The vasectomy had actually been performed in 2009, not 2007.
9.       The jury obviously, and appropriately, rejected these considerations as affecting the plain falsity of his evidence.
10.     The background to the offending is important:…

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 White (No 4)

Details

AGLC: R v White (No 4) [2022] ACTSC 79
Case: [2022] ACTSC 79
Decision Date

CaseChat Overview and Summary

In the case of R v White (No 4), the offender, Scott John White, faced a trial before Elkaim J in the Supreme Court of the Australian Capital Territory on charges of perjury. The charges stemmed from evidence White gave during the proceedings against Ms Sarah Jane Parkinson, who was accused of making false rape and domestic violence allegations against her former fiancé, Mr Daniel Jones. White, a New South Wales police officer at the time, gave evidence that he believed to be truthful but was later found guilty of perjury by a jury. The court had to decide on the appropriate sentence for White's conviction on one count of perjury while acknowledging the broader context of the case and its impact on Mr Jones and his family.

The legal issues before the court included determining the objective seriousness of the offence, considering the circumstances under which the perjury was committed, and weighing the factors in mitigation and aggravation. The court had to balance the aggravating factor of White's status as a police officer with the mitigating factors such as his otherwise good character, lack of criminal history, and the one-off nature of the offence. Additionally, the court needed to consider the victim impact statement from Mrs Michelle Jones, Mr Daniel Jones' mother, to understand the repercussions of White's actions on the Jones family.

Elkaim J assessed the objective seriousness of the offence as below medium, taking into account the singular nature of the perjured evidence and its limited impact on the overall proceedings. The court recognised the devastating effects on the Jones family but emphasised that White was being sentenced only for the offence of perjury. The sentencing was further influenced by the good character evidence presented and White's otherwise commendable service as a police officer. Elkaim J decided on a suspended sentence to reflect the mitigating factors while ensuring that the sentence adequately reflected the seriousness of the offence. The offender was sentenced to 18 months imprisonment, suspended with immediate effect, and required to enter a Good Behaviour Order for 24 months.

In summary, the court sentenced White to an 18-month term of imprisonment, suspended with immediate effect, and mandated a Good Behaviour Order for 24 months, reflecting the seriousness of the offence and the mitigating factors presented.

Orders