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12
Court of Criminal Appeal 18 July 2001

REGINA v GIANG

[2001] NSWCCA 276

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE S 319 CRIMES ACT OBJECTIVE CRIMINALITY OF THE APPLICANT SERIOUS NATURE OF OFFENCE

Citation: [2001] NSWCCA 276
Court: New South Wales Court of Criminal Appeal
Date: 18 July 2001
Judge(s): Studdert J, McClellan J

Background

The applicant pleaded guilty in the District Court to doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act. The charge arose from an agreement he made with a friend, who had been charged with malicious wounding following an incident at a Cabramatta club, to attend court and give false evidence that the friend had been acting in self-defence.

The applicant attended the Local Court on the first hearing date in July 1999, ready to give evidence, but was not required because the prosecution case was not completed. Police obtained evidence of the agreement through a listening device. On the adjourned date in October 1999, the applicant again attended court, well dressed for the occasion, but ultimately left without giving evidence.

The District Court judge found that the applicant only changed his mind on the day of the adjourned hearing, after being told by his friend that police were aware of the plan. The applicant was sentenced to fifteen months imprisonment with a non-parole period of eight months. He sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentence of fifteen months imprisonment with an eight-month non-parole period was manifestly excessive in all the circumstances
  • Whether the sentencing judge gave adequate weight to the applicant's early guilty plea, youth, academic and employment record, contrition, and prospects of rehabilitation
  • Whether the sentencing judge placed undue weight on general deterrence over rehabilitation
  • Whether the sentencing judge erred in not further considering periodic detention as an alternative to full-time custody

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. McClellan J (with Studdert J agreeing) found that no error had been demonstrated in the exercise of the sentencing judge's discretion, which is the threshold the Court must find before it can intervene in a sentence.

The Court acknowledged that the subjective circumstances of the applicant were significant. He was twenty-two years old at the time of the offence, had no relevant criminal history, held a university degree, was in stable employment, and had good prospects of rehabilitation. He did not initiate the offence and stood to gain nothing beyond modest reimbursement for lost work time.

Against those factors, the Court emphasised the objective seriousness of the offending. Because of the applicant's agreement, false instructions were given to Mr Gabriel's solicitor and the initial stages of the defended hearing were conducted on that basis. The applicant maintained his intention to give false evidence over several months and across both court dates, abandoning it only after proceedings were underway. The Court found that these circumstances did not place the offending at the lowest end of the scale of criminality.

The Court also upheld the finding that the applicant had refused to consent to periodic detention, which foreclosed that sentencing option. Although the sentence was described as sitting at the top end of the available range, the Court concluded it remained within the proper exercise of the sentencing judge's discretion and declined to interfere.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence for perverting the course of justice under s 319 of the Crimes Act (maximum fourteen years) will attract full-time custody where the offending involves a sustained agreement to give false evidence, even where the false evidence was ultimately not given.
  • Positive subjective features, including youth, tertiary qualifications, stable employment, contrition, and good rehabilitation prospects, do not automatically displace the need for full-time imprisonment where the objective seriousness of the offence is significant.
  • The Court of Criminal Appeal confirmed that it can only intervene in a sentence where error has been demonstrated; it is not sufficient that the Court might have imposed a different sentence (applying Slander v The Queen (1999) 195 CLR 655 and Dinsdale v The Queen (2000) 175 ALR 315).
  • Where a defendant does not consent to periodic detention, that option is unavailable to a sentencing court and no error arises from its non-imposition.
  • In dismissing the appeal, the Court characterised the sentence as at the top end of the available range but still properly within the sentencing judge's discretion, reflecting the serious harm that fabricated witness agreements cause to the integrity of the criminal justice system.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW) s 319
- Justices Act (NSW) s 51A

Cases
- R v Purtell [2001] NSWCCA 21
- R v Chapman, NSWCCA, 21 May 1998 (unreported)
- R v Bulliman, NSWCCA, 25 February 1993 (unreported)
- R v Aristodemou, NSWCCA, 30 June 1994 (unreported)
- R v Chad, NSWCCA, 13 May 1997 (unreported)
- R v Healy, Court of Appeal of Victoria, 4 August 1997 (unreported)
- R v Stone, Supreme Court of Victoria, 4 March 1998 (unreported)
- R v Paul Ronald Delio, Supreme Court of Victoria, 23 March 1998
- Christian v R, Supreme Court of Western Australia, Court of Criminal Appeal, 17 May 1996 (unreported)
- R v Wiltshire [1999] WASCA 113
- Slander v The Queen (1999) 195 CLR 655
- Dinsdale v The Queen (2000) 175 ALR 315