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Tourni v R

Tourni v R

Case [2010] NSWCCA 317 17 December 2010

Appeal

Criminal Liability

Perverting the Course of Justice

Falsifying Documents

Sentencing

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Tourni v R [2010] NSWCCA 317

HEARING DATE(S): 28 October 2010

JUDGMENT DATE:
17 December 2010

JUDGMENT OF: Simpson J at 1; Fullerton J at 2; RA Hulme J at 78

DECISION: 1. The appeal against conviction is dismissed.
2 The sentences imposed on the charges of giving false evidence are confirmed.
3. The sentence imposed on the charge of perverting the course of justice is quashed and in lieu thereof a term of imprisonment comprising a non-parole period commencing on 27 March 2010 and expiring 22 October 2010 with a balance of term commencing on 23 October 2010 and expiring on 26 July 2011. The release of the applicant to parole is directed to have taken effect on 22 October 2010.

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - giving false evidence - perverting the course of justice - falsifying community service order time sheets - whether conduct as particularised on CAN constituted breach of s 319 of Crimes Act - delay between date of commission of offences and service of CANs - whether sentencing judge failed to give adequate reasons

LEGISLATION CITED: Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999
Independent Commission Against Corruption Act 1988
Telecommunications (Interception) Act 1979

CATEGORY: Principal judgment

CASES CITED: Einfield v R [2008] NSWCCA 215
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508
Lodhi v R [2006] NSWCCA 121
Marinellis v R [2006] NSWCCA 307
R v Blanko [1999] NSWCCA 121; 106 A Crim R 303
R v Purtell [2001] NSWCCA 21; 120 A Crim R 317
R v Todd [1982] 2 NSWLR 517
TJ v R [2009] NSWCCA 99

TEXTS CITED: New South Wales, Independent Commission Against Corruption, Report on Investigation into the Case Management and Administration of Community Service Orders, (September 2006)

PARTIES: John Tourni (App)
The Crown (Resp)

FILE NUMBER(S): CCA 2008/20431

COUNSEL: J Trevallion (App)
V Lydiard (Resp)

SOLICITORS: P McGirr (App)
Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1349

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 27 November 2009

2008/20431

SIMPSON J
FULLERTON J
RA HULME J
17 DECEMBER 2010

John TOURNI v R

JUDGMENT

1 SIMPSON J

: I agree with Fullerton J.

2 FULLERTON J: On 11 December 2008 the applicant pleaded guilty in the Local Court to two charges of giving false evidence contrary to s 87 of the Independent Commission Against Corruption Act 1988 to which a maximum penalty of 5 years imprisonment applies and one charge of perverting the course of justice contrary to s 319 of the Crimes Act 1900 to which a maximum penalty of 14 years applies. He was committed for sentence to the District Court.

3 On 27 November 2009 concurrent terms of 6 months imprisonment (described by the sentencing judge as “non-parole periods”) were imposed on each of the two charges…

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 Tourni v R

Details

AGLC: Tourni v R [2010] NSWCCA 317
Case: [2010] NSWCCA 317
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appellant, Tourni, appealed against his conviction and sentence for offences of giving false evidence, perverting the course of justice, and falsifying community service order time sheets. The case was heard in the High Court of Australia. The appellant had been charged with various offences, including perverting the course of justice and giving false evidence, after he falsely completed time sheets for community service orders. The appellant argued that the charge of perverting the course of justice was not valid as it was not particularised in the charge and notice of allegations (CAN) served on him.

The legal issues before the court were whether the conduct as particularised in the CANs constituted a breach of section 319 of the Crimes Act, and whether the sentencing judge failed to give adequate reasons for the sentence imposed. The court considered whether the delay between the date of commission of the offences and the service of the CANs affected the validity of the charges. The appellant also argued that the sentencing judge did not adequately consider the mitigating factors in his case.

The court found that the conduct as particularised in the CANs did constitute a breach of section 319 of the Crimes Act. The court held that the delay between the date of commission of the offences and the service of the CANs did not affect the validity of the charges. The court also found that the sentencing judge did not fail to give adequate reasons for the sentence imposed. The court held that the appellant's appeal against conviction and sentence was dismissed. The court found that the appellant's conduct was serious and warranted a substantial sentence of imprisonment.

Orders