Regina v Pile - [2005] NSWCCA 74

CITATION:
Regina v Pile [2005] NSWCCA 74

HEARING DATE(S): 11/3/05

JUDGMENT DATE:

11 March 2005

JUDGMENT OF:
Spigelman CJ at 1; Grove J at 43; Bell J at 2

DECISION:
(1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence imposed in the District Court and, in lieu thereof, sentence the applicant to a fixed term of imprisonment for five months to commence on 16 August 2005 and to expire on 15 January 2006.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED:
R v Aristodemou (Unreported, CCA, 30 June 1994)
R v Bulliman (Unreported, CCA, 25 February 1993)
R v Chad (Unreported, CCA, 13 May 1997)
R v Simpson (2001) 53 NSWLR 704
R v Thomson (2000) 41 NSWLR 383
R v Young [2003] NSWCCA 276

PARTIES:
Clinton John Pile (Applicant)
Regina (Respondent)

FILE NUMBER(S):
CCA 2004/1835

COUNSEL:
A Francis (Applicant)
G Rowling (Crown)

SOLICITORS:
S O'Connor (Applicant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/61/0178

LOWER COURT JUDICIAL OFFICER:
Morgan DCJ

2004/1835

SPIGELMAN CJ
GROVE J
BELL J
Firday 11 March 2005

Regina v Clinton John Pile

Judgment

1 SPIGELMAN CJ: I invite Justice Bell to deliver the first judgment.

2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant in the District Court. On 5 December 2003, the applicant appeared for trial on an indictment that charged him with one count of perjury contrary to s 327 of the Crimes Act 1900. He entered a plea of guilty and, on 18 December 2003, was sentenced to a fixed term of nine months' imprisonment. The maximum penalty for this offence is a term of imprisonment for ten years.

3 The indictment charged the applicant that, on 4 November 2002, in connection with the trial of a man named Dean Vaughan at the Bathurst District Court, he made a false statement on oath knowing the statement to be false concerning a matter material to the proceedings, namely, that the armed robbery of the Kandos Post Office on 30 January 2002 was committed by him in the company of a man named Peter Carter.

4 The applicant had been earlier convicted of the armed robbery of the Kandos Post Office and sentenced by Bellear DCJ on 29 August 2002 for this offence. Following his arrest, the applicant made full admissions in an electronically recorded interview in which he named his co-offender as Dean Vaughan.

5 At the sentence hearing before Bellear DCJ, the applicant gave evidence confirming the truthfulness of the account he had given to the police, including that his co-offender was Dean Vaughan. Judge Bellear queried whether the applicant had been asked if he was willing to give evidence against Vaughan. He said that he had been asked to do so and that he had declined. The applicant was thus sentenced without the…

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 Regina v Pile

Details

AGLC: Regina v Pile [2005] NSWCCA 74
Case: [2005] NSWCCA 74
Decision Date: 11 March 2005

CaseChat Overview and Summary

In Regina v Pile, the applicant appealed against the severity of a sentence imposed on him in the District Court for perjury. The applicant had been convicted of armed robbery and, during the trial of his co-accused, he gave false evidence at the direction of his co-accused, who was also in custody. The Court of Criminal Appeal considered the appeal on three grounds, including whether the sentencing Judge had erred by failing to have regard to the utilitarian value of the plea and the contrition demonstrated by it. The Court found that while the sentencing Judge had referred to the plea of guilty, she did not explain how she proposed to take it into account, which may suggest error. However, the Court was not persuaded that this failure disclosed error in this case. The Court also considered whether the sentencing Judge had erred by failing to have regard to the salient features, subjectively and objectively, of the applicant's case which warranted leniency, and whether the sentence was manifestly excessive. The Court found that the sentencing Judge had erred in failing to distinguish the objective seriousness of the applicant's perjury from cases involving persons motivated to pervert the course of justice for their own purposes. The Court was persuaded that a lesser sentence was warranted in law, and in re-sentencing the applicant, it took into account the purposes of sentencing, aggravating and mitigating factors, the utilitarian value of the plea of guilty, and the contrition evidenced by it. The Court proposed a fixed term sentence of five months' imprisonment to commence at the expiration of the non-parole period of the sentence presently being served.

The orders of the Court were to grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court, and in lieu thereof, sentence the applicant to a fixed term of imprisonment for five months to commence on 16 August 2005 and to expire on 15 January 2006.

Orders