Taylor v R

Case [2007] NSWCCA 99

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      TAYLOR v. REGINA [2007]  NSWCCA 99

FILE NUMBER(S):
No. 2006/2832

HEARING DATE(S):               Wednesday 4 April 2007

JUDGMENT DATE: 4 April 2007
EX TEMPORE DATE:          4 April 2007

PARTIES:
TAYLOR, Christopher Wayne v. REGINA

JUDGMENT OF:       McClellan CJ at CL Hoeben J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/121/3108

LOWER COURT JUDICIAL OFFICER:     Goldring DCJ

LOWER COURT DATE OF DECISION:    3 August 2006

COUNSEL:
Crown:  N. Norman
App:  R. Bonnici

SOLICITORS:
Crown:  S. Kavanagh
App:  S. Moran & Co

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900 (NSW)

CASES CITED:
Regina v Taouk (1992) 65 A Crim R 387
Pearce v The Queen (1998) 194 CLR 610

DECISION:
Leave to appeal granted.  Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 2006/2832

McCLELLAN CJ at CL
HOEBEN J
HALL J

WEDNESDAY 4 APRIL 2007

CHRISTOPHER WAYNE TAYLOR v. REGINA

Judgment

  1. HALL J:  The applicant, by way of notice of application for leave to appeal dated 6 December 2006, seeks leave to appeal from the sentence imposed on him in the District Court (Goldring DCJ) on 3 August 2006.

  2. The applicant pleaded guilty to three charges as follows:-

    •One count of malicious wounding of Gregory King on 24 September 2004 under s.35(1)(a) of the Crimes Act 1900.

    •One count of perverting the course of justice under s.319 of the Crimes Act 1900 (Count 2) in that between 22 November 2004 and 1 March 2006 at Parklea and other places caused Lisa Bowman to make an untruthful statement to police with intent to pervert the course of justice.

    •One count of perverting the course of justice under s.319 of the Crimes Act 1900 (Count 3) in that between 3 December 2004 and 11 November 2005 at Parklea and other places he did attempt to cause Kerry Donley to supply false information to the police and attempted to cause Kerry Donley to cause others to supply false information to the police with intent thereby to pervert the course of justice.

  3. In respect of the first charge of malicious wounding, the applicant was sentenced to a period of imprisonment for three years commencing on 16 November 2004 and to expire on 15 November 2007.  A non-parole period of two years and three months commencing 16 November 2004 and expiring on 15 February 2006 was imposed.

  4. In respect of the second count, a term of imprisonment was imposed of two years and three months commencing on 16 February 2007 and expiring on 15 May 2009 with a non-parole period of two years and three months commencing on 16 February 2007 and expiring on 15 May 2009.

  5. In respect of count three, a fixed term of imprisonment was imposed of two years commencing on 16 February 2007 and expiring on 15 February 2009.

  6. Accordingly, the sentences for the first and second count were cumulative on each other and the two sentences for perverting the course of justice were concurrent with each other, although…

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AGLC
Taylor v Regina [2007] NSWCCA 99
Case
[2007] NSWCCA 99
Decision Date

CaseChat Overview and Summary

The case of Taylor v R involved an appeal by the defendant against his sentence for multiple criminal charges. The defendant was convicted of malicious wounding and two counts of attempting to pervert the course of justice. The court was tasked with determining the appropriate sentence for these offences and whether the sentences should be cumulative or concurrent. The defendant argued that the charges should be treated as related and that the sentences should not be cumulative. The Crown, on the other hand, argued that the offences were separate criminal acts and deserved cumulative sentencing.

The legal issues the court had to decide included whether the offences of attempting to pervert the course of justice were ancillary to the primary offence of malicious wounding, and if so, whether they should be treated as such in sentencing. The court also had to consider the nature and seriousness of the offences of perverting the course of justice, and the need for general deterrence in sentencing for such offences. Additionally, the court needed to assess whether the sentences should be cumulative or concurrent, based on the circumstances of the case.

The court found that the offences of perverting the course of justice were separate criminal acts and not ancillary to the primary offence of malicious wounding. It held that these offences deserved a sentence that was cumulative to the primary offence due to their serious nature and the need for general deterrence. The court found that the defendant's conduct was persistent, involved pressure on a witness over many months, and displayed a willingness to falsely accuse an innocent person. These aspects of the defendant's conduct warranted condemnation and reflection in sentencing. The court concluded that the sentencing judge had correctly imposed cumulative sentences for the offences of attempting to pervert the course of justice.

In summary, the court upheld the sentencing judge's decision to impose cumulative sentences for the offences of attempting to pervert the course of justice. The court found that these offences were separate criminal acts and not ancillary to the primary offence of malicious wounding. The court emphasised the importance of general deterrence in sentencing for such serious offences and the need to condemn and reflect on the defendant's persistent and pressured conduct in attempting to pervert the course of justice.

Orders

Orders of the court

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Background

Background to the litigation

The overall sentence of imprisonment was, accordingly, a period of five years and six months with a non-parole period of four years and six months.Facts The Crown, in its written submissions, dated 22 March 2007 conveniently set out the factual background to the charges (paragraphs 6 to 9) and I reproduce those paragraphs below:-“6.A statement of agreed facts became Exhibit A on the sentence proceedings. His Honour summarised these quite extensively from pages 1 – 11 of the Remarks on Sentence (ROS). Briefly stated they are as follows: The victim was owed money by another person, Tanya Matthews. Arrangements were made on 24 September 2004 for the money to be paid back at the Ambarvale Tavern. This did no occur and an argument developed outside the hotel. Later on that evening the victim saw the applicant, Matthews and Lisa Bowman walking along the road and he stopped his car and approached the group. As the victim was talking to Matthews, the applicant approached the victim and stabbed him towards the left side of his stomach. The victim realised he was bleeding. The applicant hen said, ‘Do you want me to stab you again’. The victim returned to his car. The applicant, Matthews and Bowman then ran off. The victim drove to Matthews’ house looking for the group but they were not there. The victim armed himself with a knife and cricket bat. He drove around until he saw the applicant, the applicant’s father and another person. The victim got out of the care armed with the knife and the cricket bat. There was shouting back and forth. The applicant yelled at the victim, ‘Next time I’m gunna cut your head off you bikie cunt’. The victim then got back in his car and drove away. He then called a friend who took him to hospital. The victim received a three centimetre penetrating wound to the abdomen and subsequently underwent a number of operations.7.The applicant was interviewed on 10 October 2004 and denied all knowledge of the incident. He indicated that he thought Tanya Matthews might have been responsible for the knifing. On 16 November 2004, he was interviewed again and this time told the police that he was present when King was stabbed but that it was Matthews who had stabbed him. The applicant was then charged and bail refused. The two pervert the course of justice charges arise from taped telephone conversations he made when he was in custody and information received from Lisa Bowman.8.In relation to count two, the applicant made numerous calls to Lisa Bowman using his relationship with her to induce Bowman to say that she saw Matthews stab the victim. He tried to get Bowman to get someone that he did not know to say they were driving past and saw Matthews stab the victim. In Bowman’s first statement, she said that she was drunk and could not remember anything. He told her to change her statement because that would ‘fuck him’ and to tell the police that she had only said that because she was fighting with the applicant at the time of making her statement. On 29 April 2005, the applicant told Bowman what to say in her statement regarding the events of the night. The applicant told her to tell police that she saw Matthews hit the victim in the stomach and that she thought she saw something in Matthews’ hand. On 30 January 2006, the applicant told Bowman what to say in court. He told her to tell the truth about the evening until the time the victim pulled up in the car. He told her to say that Matthews walked over to the victim and that the victim did not approach them at any time. On 1 February 2006, the applicant told Bowman to say that the victim had threatened her and kidnapped her and that was why she was changing her statement. On 9 February 2006, the applicant told her that if she made another statement the matter would not probably even get to trial. The applicant confirmed that she was prepared to say that Matthews stabbed the victim. More calls followed organising the taking of this statement. The applicant told her that all she had to say was that it took her so long to make a new statement because she was afraid of the victim. The applicant constantly reminded her that she was the ‘key witness’ in the case and reassured her when she was concerned about getting caught that she would not get into trouble and that he would not let that happen to her. On the first day of the trial, 6 March 2006, Bowman provided a fresh statement in terms requested by the applicant. Police became suspicious and obtained the telephone recordings from the gaol. Bowman was aware of this and made a third statement indicating that she had not told the truth in the first two statements because she was afraid of both the applicant and the victim and did not wish to get involved. In her third statement and in court, Bowman said that she saw the applicant and the victim involved in a scuffle and then she had run away.9. Count three involved attempts by the applicant to persuade his mother, Kerry Donley, to provide false information to the police. The applicant knew that the police had taken the jumper he was wearing the night of the incident. He told his mother to buy the same jumper. If the police located blood on the jumper she was to say that she had given the police Matthews’ jumper and that Matthews had accidentally left it at her house. The applicant and his mother discussed over numerous calls someone called Lyn who was prepared to make a false statement and say that she saw the incident. The applicant told her that Lyn was to say that she saw the applicant sitting on the fence the whole time and that she saw a lady and a man talking on the road and then the man fell over. Later when Lyn could not be found, the applicant’s mother suggested someone else. The applicant asked her to get two witnesses. The applicant’s mother told him that someone called Fran owed her $750 and the implication was that if she provided the statement she would be paying off the debt.”Subjective matters

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ, CLELLAN CJ

It is true, as observed in the written submissions for the applicant, that the offender was in custody for the offence in respect of the malicious wounding charge and that counts 2 and 3 were committed whilst he was in gaol. It was contended that these facts directly related to aspects of count 1 with the other offences and the offender’s state of mind “… and the link between the two sets of charges is obvious” (paragraph 46).Consideration In relation to ground 1, the primary statement made by the sentencing judge in relation to the course proposed to be followed in imposing cumulative sentences for counts 2 and 3 are contained in his statement which I have set out and referred to in paragraph 18. I accept the Crown’s submission that there was no error in his Honour adopting that course. Offences of perverting the course of justice are, in my opinion, rightly singled out as offences of the most serious kind for reasons identified and expressed by the learned sentencing judge and are deserving of a sentence that is cumulative to the primary offence, in this case, count 1. One rationale for that approach is the absolute importance of deterrence, particularly general deterrence. In the present case, as the sentencing judge observed, the applicant’s conduct in respect of counts 2 and 3, occurred over a substantial period of time. In particular, in relation to count 2, his conduct was persistent and extended over many months. In relation to counts 2 and 3, he sought to entice two different people to help him to achieve the same result. I accept the Crown’s submission that there was, in effect, no relevant relationship between counts 1 and counts 2 and 3 and that they did not arise out of the same factual circumstances. Counts 2 and 3, as the Crown submitted, arose out of quite different conduct and the offences of perverting the course of justice could not be classed as ancillary crimes. Additionally, the fact that the applicant’s conduct was thwarted is also of no significance. As Badgery-Parker, J. stated in Regina v. Taouk (1992) 65 A. Crim. R. 387 at 392 in the context of an act intended to pervert the course of justice, the fact that the act did not succeed or even was doomed to failure is, as his Honour said, “of far less significance than in the case of sentencing for an attempt to commit a substantive crime and the potential seriousness of the consequences is of much greater weight”. I further accept the submission that has been made on behalf of the Crown that the applicant’s conduct exhibited, not only persistence, but pressure on Ms. Bowman over many months and that the applicant was willing to induce people to lie on his behalf and provide false information to police. In this respect, he displayed a willingness to accuse an innocent person of the crime of malicious wounding and create evidence which would support such an accusation against her. It is these aspects of the applicant’s conduct that, in my opinion, called for condemnation and reflection in the approach required to be taken to sentencing him and that was in fact taken in this case.