Smith v The Queen

[2014] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0158

GARY SMITH

Applicant

v

THE QUEEN

Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 October 2014
DATE OF JUDGMENT:	1 October 2014
MEDIA NEUTRAL CITATION:	[2014] VSCA 241
JUDGMENT APPEALED FROM:	DPP v Smith & Cooper (Unreported, County Court of Victoria, Judge Mason, 23 May 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Perjury – Attempt to pervert the course of justice – Applicant of previous good character, with stable family and employment history, no prior convictions, early plea of guilty, demonstrated remorse and very good prospects of rehabilitation – Manifest excess – Sentence of 15 months with NPP of 9 months manifestly excessive in all the circumstances – Application granted and appeal allowed – Applicant resentenced to 12 months, with 8 months suspended.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gurvich	Mark Ryan Legal GP
For the Crown	Mr R Gibson	Mr C Hyland, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

1. On 20 May 2014, the applicant pleaded guilty in the County Court to one charge of perjury and one charge of attempting to pervert the course of justice.  Following a plea hearing the applicant was sentenced as follows:

Charge on Indictment	Offence	Maximum		Sentence	Cumulation
2.	Perjury [s.314 Crimes Act 1958]	Level 4 imprisonment (15 years maximum) [s.314(1) Crimes Act 1958]		12 months’ imprisonment	Base
3.	Attempt to pervert the course of justice [Common law]	Level 2 imprisonment (25 years maximum) [s.320 Crimes Act 1958]		6 months’ imprisonment	3 months
Total Effective Sentence:			15 months’ imprisonment
Non-Parole Period:			9 months’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			N/A
6AAA Statement: 20 months imprisonment with a non-parole period of 15 months.

1. The applicant seeks leave to appeal on a sole ground which contends that the sentence imposed upon him was manifestly excessive.

The offending

1. The charges the applicant pleaded guilty to relate to a police investigation of an armed robbery conducted by others to repossess a vehicle the ownership of which was in dispute among other individuals.  The vehicle was seized during the armed robbery and driven away.  At all relevant times the applicant possessed a key to the vehicle.  The existence and possession of the vehicle’s keys was a matter of interest to the police officers who were tasked with the investigation of the armed robbery.

1. On 5 December 2012, following the armed robbery, the police took a formal written statement from the applicant as to his possession of one of the keys to the vehicle.  The applicant signed this statement and acknowledged that it was made in the belief that a person making a false statement was liable to the penalties for perjury.  The statement contained the following false information:

(a)the key that had been given to the applicant (‘the key’) was in the applicant’s work van at the premises of an employee (‘the employee’) of the applicant;

(b)the applicant had not given the key to another person; and

(c)the applicant had no knowledge of the repossession of the vehicle that had occurred earlier on 5 December 2012.

1. After completing his statement, the applicant left the police station with the knowledge that an armed robbery and assault had been committed.  He later relocated the vehicle and then staged a charade whereby he pretended to remove the key from his work van console in order to make the employee believe that the key had been secured in the van throughout the day, including at the time of the armed robbery.  Later that evening, the applicant presented the key to the police.

1. On 6 December 2012, the applicant was again approached by investigating police.  The applicant made a second statement.  He signed that statement and acknowledged that it was made in the belief that a person making a false statement was liable to the penalties for perjury.  That statement contained the following false information:

(a)the key had been in the applicant’s work van at the employee’s premises; and

(b)the applicant had collected the key from the van in the employee’s presence.

1. On 24 April 2013, the applicant was again interviewed by police.  He initially maintained his original version of events, but later admitted to lying to police throughout the course of the investigation and to providing false statements (the applicant’s first and second statements) containing misleading information.  The applicant provided a third statement.  However, that statement was also false in that it stated that, after making the first statement on 5 December 2012, the applicant said (in his third statement) that he had met another person and collected the key from that third party.

1. On 25 April 2013, the applicant contacted investigating police and admitted to lying in his third statement.  On 6 May 2013, the applicant provided a fourth and final statement, the veracity of which is not in dispute. 

1. The charge of perjury was a rolled-up charge constituted by the giving of the false information in the applicant’s first three statements to police.  The charge of attempting to pervert the course of justice was constituted by the relocation of the vehicle and the conduct of the charade in front of the employee whereby the applicant pretended to recover the key from his work van console. 

The sentencing judge’s reasons

1. In sentencing the applicant, the judge said:

[Y]ou are now aged 51, at the time of the offending you were aged 49 and 50, and you have no prior criminal record. 

You are married with two children aged 14 and 18, and you have worked solidly throughout your life, initially as a labourer, then truck driver for 15 years, and for almost 20 years now with your own business in various aspects of car detailing, accessory sales and vehicle window tinting.  Your wife has a bank agency with Westpac.  In recent times you have also sought additional work as a driver to supplement family income.  You have led a hard-working life, maintained a good marriage and raised a family.  You are well respected in your community. 

The crimes of perjury and attempt to pervert the course of justice are very serious offences.  The administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court in a timely way and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned.  Perjury is a very serious offence because justice simply cannot be administered unless people speak the truth on oath.  Justice inevitably suffers, whatever the motive for the perjury and in whatever circumstance it is committed. 

The police investigation in this case was concerned to follow the movement of the key and to determine where it was.  You could have assisted but chose instead to give police false information in sworn statements, and in the process relocated the Triton utility and set up a false scenario where you had pretended to recover the key from a work vehicle.  The effect of your conduct was to divert the police inquiries, made the task of the police investigators more difficult and resulted in a waste of resources and a more protracted investigation.

In mitigation I accept that you originally had no knowledge of the fact of an armed robbery having been committed or having been planned, and acted out of fear to distance yourself from what you had known to be the taking of the law into your own hands to assist in the recovery of the Triton from the Jacksons by use of the key once it had been found. 

I also accept that once you had committed the first false statements you panicked and maintained a pattern of repeated falsity in order not to reveal the initial deception.  That panic increased when it was apparent to you that you were yourself at risk of being regarded as being directly complicit in the actual armed robbery and possibly attempted murder.

I also accept:

·your plea of guilty and the subsequent remorse that you have expressed.  I also accept that the plea was made at an early stage because you had a legitimate cause to challenge the charges profferred (sic.) at the committal which resulted in the reduction of your ultimate charges. 

·the absence of any prior criminal offending,

·your stable family background and employment history,

·your otherwise good character as testified by your character witnesses,

·your prospects of rehabilitation, which I regard as very good.  I accept that it is very likely that you have experienced a very high degree of stress and anxiety as a result of your very foolish behaviour, and that it is unlikely that you will reoffend. 

Despite your otherwise good character I do regard, however, the objective seriousness of these offences in circumstances which involved the repetition and cumulative acts as not being appropriately amenable to a sentence that does not involve your immediate confinement in custody.[1]

[1]DPP v Smith & Cooper (Unreported, County Court of Victoria, Judge Mason, 23 May 2014) [70]–[77] (‘Reasons’).

Analysis

1. As the judge noted correctly, perjury and attempting to pervert the course of justice are very serious offences.  That said, when one considers the whole of the circumstances of the applicant’s offending together with his previous good character, stable family and employment history, lack of prior convictions, early plea of guilty, remorse and very good prospects of rehabilitation, we are driven to the conclusion that the sentence imposed was outside the permissible range open to the sentencing judge. 

1. In our view, this was a case that called for a term of imprisonment, but one that would involve the applicant serving substantially less than the sentence imposed by the judge.  Further, we think that to cumulate part of the sentence imposed on the attempting to pervert the course of justice charge involved error when, in reality, the applicant’s offending was but one course of conduct. 

1. In the circumstances, we would re-sentence the applicant to 12 months’ imprisonment on the perjury charge and three months’ imprisonment on the charge of attempting to pervert the course of justice.  Further, we would suspend eight months of the sentence for a period of twelve months.

Conclusion

1. The application for leave to appeal against sentence will be granted.  The appeal treated as instituted and heard instanter and the appeal allowed.  In lieu of the sentence imposed in the County Court, the applicant will be sentenced on charge 2 to a term of 12 months’ imprisonment and on Charge 3 to a term of three months’ imprisonment.  The total effective sentence is thus 12 months’ imprisonment.  We would suspend eight months of the sentence so imposed for a period of twelve months.    

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