Taylor v R - [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

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.
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.
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.
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.
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.
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 both of them were cumulative on the sentence for malicious wounding.
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
The applicant is aged 27 years (date of birth 22 April 1979) and was unemployed at the time of the offences.
Findings made by the sentencing judge are extracted in the Crown’s written submissions as follows:-
“•The applicant was (sic) now 27 years of age. His parents had separated when he was very young. His mother had a series of relationships and there was evidence that the applicant was physically abused from time to time.
•The applicant had been in a relationship with a woman who had had some health and drug problems. Their two year old son was in foster care. An older sone from another relationship has visited him once since he had (sic) been in custody.
•The psychologist that provided a report concluded that he was reasonably intelligent, articulate and able to understand questions. He had been employed in various occupations but had had a back injury.
•Shortly before those offences, he was smoking heroin. He was on a methadone programme when he went into custody in November 2004 but he was no longer on the programme. His Honour concluded that he was still vulnerable to problems associated with the use of drugs. On the night of the malicious wounding offence, he was drinking which was unusual for him.”
There are two grounds of appeal as follows:-
Ground 1: That his Honour, the sentencing judge erred in the exercise of his discretion by not making the sentences in relation to perverting the course of justice partly concurrent to the sentence of malicious wounding, instead of cumulative
Ground 2: That in the circumstances of this matter, the overall sentence, including the non-parole period, is manifestly excessive.

Ground 1
In the written submissions on behalf of the applicant dated 29 November 2006 it is conceded that there appear to be “… no error in the procedure and specific matters which his Honour addressed”. However, it was stated that there was “… some issue to be looked at as to whether the sentences in relation to the counts of perverting the course of justice, which are themselves concurrent, should not have been partly concurrent to the charge of malicious wounding instead of being completely cumulative”.
It is conceded in those submissions that the sentencing exercise involved in the case involves “… a difficult area of assessing the area of discretion of a sentencing judge and to what extent, if any, his Honour was in error”.
It was further conceded that the term of imprisonment imposed in respect of count 1 was “within range”, even though it was substantial. It is also conceded that the non-parole period imposed for that offence was also within range and not appellable.
The focus of the submissions made on behalf of the applicant concern counts 2 and 3. Emphasis is given to the fact that the length of sentences for those counts “… is actually greater than the one for the more substantive and violent crime, in the particular circumstances of this case” (paragraph 27).
In relation to the second count involving Ms. Bowman, it is said that the applicant’s actions were “… an exercise in stupidity …” (paragraph 30). Whether that be so or not, the applicant’s conduct in relation to both counts 2 and 3 were, as the sentencing judge stated, serious and, in my opinion, involve criminality of a high order.
It is conceded on behalf of the applicant, as it must, that the sentencing judge extended some leniency to the applicant insofar as the sentences for counts 2 and 3 were concurrent.
It was contended on behalf of the applicant that there was a relationship between the offences; i.e. counts 1, 2 and 3. The applicant’s written submissions (paragraph 42) extract the following passage from the remarks on sentence:-
“The offence of perverting the course of justice, of its nature, is one that is committed after some other offences is, or is alleged, to have been committed … It is quite separate from the first offence and in my view, in the normal course of events, the sentence for that offence should not be even partially concurrent of the offence for any other offence.” (Remarks on Sentence, p.13)
The submission made in that respect on behalf of the applicant was put in these terms (paragraph 43):-
“Therefore, the most important question for present purposes what is the normal course of events, especially in relation to these particular circumstances.”
It was further submitted on behalf of the applicant that the sentencing judge had fallen into error by not giving “… more careful consideration to and not assessing more fully whether this matter fell in or out of the normal course of events, as defined – especially in relation to the particular circumstances of this case and this appellant” (paragraph 45).
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.
It was suggested on behalf of the applicant that the sentences for perverting the course of justice were erroneous and that the sentencing judge initially imposed a five year sentence in respect of them and only three years and six months imprisonment was imposed at the outset for the malicious wounding charge.
However, I accept the Crown’s submission that the remarks on sentence themselves do demonstrate that the sentencing judge had well in mind the requirements in relation to the two classes of offence when he said:-
“While malicious prosecution is extremely serious and the maximum penalty for that offence is seven years imprisonment, the maximum penalty for perverting the course of justice for an attempt to do so is twice that length. That is because Parliament considers that attempting to pervert the course of justice is extremely serious, not only because it makes the justice system unreliable and causes people to lose confidence in it, but also because, as in this case, if the attempt is successful it not only allows the guilty to go unpunished, but it may be, as was attempted in this case, implicate someone who is completely innocent.” (Remarks on Sentence, pp.10 to 11)
Ground 2
In determining whether the overall sentence, including the non-parole period was manifestly excessive, I have had regard to the subjective factors in considering the submission that there should have been partial cumulation of the sentences.
It was, as indicated earlier, essential that the applicant be sentence for the distinct and separate offences. It was then necessary for the sentencing judge to ensure that the appropriate overall sentence reflected criminality involved in the offences with the necessary consideration of concurrency or accumulation: Pearce v The Queen (1998) 194 CLR 610.
The sentencing judge, as I have already indicated, paid due attention to the objective features of the case but he also gave due consideration to the subjective features and, in particular, to the psychologist’s report, Ms. Freeman, and he referred to her opinion at p.12 of the remarks on sentence.
Having done so, Goldring DCJ then posed the question, to which I have already referred, “How do I take all these factors into account in determining an appropriate sentence for Mr. Taylor?”. His Honour then proceeded to have regard to both the nature of the offence involved in both counts 2 and 3 and its separateness from the first offence and before stating “… in my view, in the normal course of events, the sentence for that offence should not be even partially concurrent with the sentence for any other offence. That is the course I propose to follow here”.
His Honour sufficiently explained why, “in the normal course of events” that result should occur and the particular factual circumstances to which I have referred above would, if anything, in my opinion, reinforce the need for what his Honour described as “the normal course of events” to be followed. His Honour, in particular, adverted to the fact that he was satisfied that the first offence was not in any way planned but that he relied upon the fact that the course of conduct concerning and constituting counts 2 and 3 extended over a period of months and that “… this certainly was a planned course of action and the fact that both Ms. Bowman and the offender’s mother were involved suggests that the offence was aggravated by being a course of criminal action”.

I do not consider that any error of principle or other error has been displayed in either the approach taken by the learned sentencing judge nor in the structure of the sentences imposed.
Accordingly, I would propose the following orders:-
(a)That the applicant be granted leave to appeal.
(b) That the appeal be dismissed.
McCLELLAN CJ at CL: I agree. Although the applicant was motivated to commit the offences charged in counts 2 and 3 by the fact that he had been charged with malicious wounding, counts 2 and 3 were wholly discrete exercises of criminality. The stabbing which took place on 24 September was complete on that occasion and if - which was not the case - the applicant had taken steps to avoid apprehension and had been charged with an offence of that character, it would have been appropriate to provide partially concurrent sentences.
However, it was not until the applicant had been apprehended and was in custody that he set about creating false evidence to avoid conviction for the offence for which he had been arrested. To my mind, although partial concurrency of the non-parole periods was an available option, his Honour’s sentencing discretion did not miscarry when he determined to impose wholly cumulative non-parole periods.
It must be emphasised (as did the sentencing judge) that the offence of perverting the course of justice or attempting to pervert the course of justice is serious. The maximum penalty for that offence provided by the legislature is 14 years, double that provided for a count of malicious wounding. It is an offence which will inevitably be committed when some other criminal act has allegedly taken place. Although the other act may be necessary before the offence can be committed, there is otherwise no relationship between the offences.
The offences involving an attempt to pervert the course of justice and malicious wounding being separate criminal acts must be marked by distinct and significant punishment. I agree with the orders proposed by Hall J.
HOEBEN J: I agree with Hall J and the orders which he proposed. I also agree with the additional remarks of McClellan CJ at CL.
McCLELLAN CJ at CL: Accordingly, the orders of the court are as proposed by Hall J.

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LAST UPDATED: 11 April 2007