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3
Court of Criminal Appeal 6 July 2001

REGINA v MARINELLIS

[2001] NSWCCA 328

Public order & justice offences
SENTENCING APPEAL AGAINST SENTENCE

Citation: Regina v Marinellis [2001] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 6 July 2001
Judge(s): McClellan J; Studdert J

Background

The applicant had been charged with sexual assault in December 1996. Between April and July 1997, while those charges were pending, he approached two acquaintances on multiple occasions and asked them to provide false alibi evidence, offering payments of up to $2,000 per person recruited. One of those acquaintances alerted police, and a subsequent conversation at her home was recorded on a listening device.

The applicant was charged with two counts of doing an act with intent to pervert the course of justice under s 319 of the Crimes Act 1900. He entered guilty pleas in January 1999, though he twice sought unsuccessfully to withdraw them. The sexual assault charges were separately discontinued by the Director of Public Prosecutions.

In November 2000, Bell DCJ in the District Court sentenced the applicant to concurrent terms of 20 months imprisonment with a non-parole period of 12 months. The applicant sought leave to appeal, contending the sentences were manifestly excessive.

  • Whether the sentences of 20 months imprisonment (with a 12-month non-parole period) for two counts of perverting the course of justice were manifestly excessive.
  • Whether the applicant's psychiatric condition warranted a finding of diminished culpability and a reduction in the weight given to general deterrence.
  • Whether a non-custodial sentence was appropriate in the circumstances.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach to the applicant's psychiatric condition. Bell DCJ had reviewed all the medical and psychological evidence, including reports suggesting personality disorder and possible psychotic episodes, but concluded that the applicant's behaviour in 1997 reflected distress and anxiety rather than any psychotic or bizarre state. The sentencing judge found the applicant had formulated a deliberate and calculated plan, and the Court of Criminal Appeal held it was open to him to reach that conclusion.

On the question of diminished culpability, the court held that the finding of no relevant mental disorder meant there was no basis grounded in health to depart from the ordinary sentencing considerations, including general deterrence. The court acknowledged the applicant was under considerable psychological pressure at the time, and noted the sentencing judge had taken that into account, but this was insufficient to justify a non-custodial outcome.

The court reaffirmed that offences under s 319 of this nature will normally require full-time custody. Although statistical data suggested many offenders had not received custodial sentences for such offences, the court noted it was impossible to assess those outcomes without knowing the individual circumstances, given the wide factual spectrum the provision covers. Critically, the offence was complete once the applicant took the relevant act of seeking to obtain false evidence, regardless of the fact that no false evidence was ultimately given.

Studdert J agreed the sentence was stern but found it was within the available range of sentencing discretion. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 319 of the Crimes Act 1900, an offence of seeking to pervert the course of justice is complete upon the act of soliciting false evidence; the absence of any false evidence ultimately being given does not reduce criminal liability.
  • The Court of Criminal Appeal confirmed that, in the ordinary case, offences of this character will require a period of full-time custody, with non-custodial sentences reserved for exceptional circumstances.
  • Where a sentencing court finds that an offender was not suffering from a relevant mental disorder, despite medical evidence raising the possibility, that finding can displace any basis for reducing the weight given to general deterrence on health grounds.
  • Sentencing statistics showing that many offenders did not receive custodial sentences were given limited weight, as individual offence circumstances across the broad factual spectrum of s 319 could not be assessed from statistics alone.
  • In dismissing the appeal, the Court of Criminal Appeal found that concurrent terms of 20 months imprisonment with a 12-month non-parole period were well within the available sentencing discretion for a deliberate and sustained attempt to procure multiple false alibi witnesses.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319 (doing an act with intent to pervert the course of justice; maximum penalty: 14 years imprisonment)

Cases cited:
- Kellow and Townsend [1980] 4 Crim LJ 55
- R v Nomchong, NSWCCA, unreported, 10 April 1987
- R v Irwin [1999] NSWCCA 361
- R v Hani Taouk (1993) 65 A Crim R 387
- R v Jordan, NSWCCA, unreported, 3 November 1997
- R v Purtell [2001] NSWCCA 21
- R v Meissner, NSWCCA, unreported, 27 November 1992
- R v Chapman, NSWCCA, unreported, 21 May 1998
- R v Bayeh [1999] NSWCCA 82
- R v Karageorge [1999] NSWCCA 17
- R v Lilley [2000] NSWCCA 57
- R v Zreika [2000] NSWCCA 75