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Court of Criminal Appeal 21 August 2002

Regina v Treglia

[2002] NSWCCA 338

Public order & justice offences
PERJURY WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Regina v Treglia [2002] NSWCCA 338
Court: NSW Court of Criminal Appeal
Date: 21 August 2002
Judge(s): Hidden J, Adams J

Background

The applicant pleaded guilty in the District Court to perjury under s 327 of the Crimes Act 1900, which carries a maximum sentence of ten years. The charge arose from false alibi evidence he gave at his 1995 trial on serious armed robbery charges. He and a co-accused both gave perjured alibi evidence and were acquitted, but recordings from a listening device installed in the applicant's cell later revealed that both men had acknowledged being present at the scene.

The applicant had originally faced the more serious aggravated perjury charge under s 328, which carries a maximum of fourteen years. Following a successful Crown appeal on an evidentiary issue, the Crown ultimately accepted a plea to the lesser offence under s 327. The co-accused had absconded and was not located.

In the District Court, Judge Hock sentenced the applicant to four years imprisonment with a non-parole period of three years, commencing 7 November 2001. The sentencing judge had applied a twenty percent discount for the guilty plea, implying a starting point of five years, and did not find special circumstances warranting a longer parole period.

  • Whether the four-year sentence for perjury under s 327 was manifestly excessive having regard to comparable cases and Judicial Commission sentencing statistics.
  • Whether the sentencing judge erred in declining to find special circumstances justifying a longer additional term (and therefore a shorter non-parole period relative to the total sentence).

Decision

The Court examined the small body of available precedent for perjury under s 327, noting that the Judicial Commission's statistics covered only fifteen cases, of which just five resulted in full-time custody, with the highest being three years. The Court also considered related cases involving police officers convicted of perjury under the same provision and cases involving attempts to pervert the course of justice under s 319.

Hidden J acknowledged that the applicant's perjury was serious: it was premeditated, committed during a trial for serious criminal charges, and it resulted in acquittals that should not have been obtained. The applicant also had an unsatisfactory criminal record and a prior poor response to non-custodial alternatives. However, after weighing those factors against the available sentencing range, the Court concluded that the four-year sentence was excessive and that intervention was warranted.

On the question of special circumstances, Hidden J expressed some hesitation but found them established, taking into account the applicant's age at the time of the offence and the genuine, if modest, progress he had made towards rehabilitation. The Court reduced the total sentence to three years and set a non-parole period of eighteen months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • District Court sentence quashed.
  • Applicant sentenced to three years imprisonment, commencing 7 November 2001, with a non-parole period of eighteen months.
  • Applicant directed to be released at the expiration of the non-parole period and placed under the supervision of the Probation and Parole Service for the balance of the sentence.

Key Takeaways

  • Sentencing for perjury under s 327 of the Crimes Act 1900 involves limited appellate guidance: the Court of Criminal Appeal noted few precedents and a small Judicial Commission statistical sample, making the exercise particularly difficult.
  • A sentence of four years for a s 327 perjury offence, even where the perjury was premeditated and committed during a trial for serious charges, fell outside the available range when assessed against comparable decisions and sentencing statistics.
  • Special circumstances may be found where an offender's youth at the time of the offence and demonstrated rehabilitation, even if assessed as "guarded," combine to justify a longer parole period relative to the total term.
  • The Court distinguished the present case from R v Fish and Swan, where police officers convicted of perjury received sentences that were not disturbed, partly because those offenders' dereliction of public duty aggravated their culpability.
  • In applying a discount for a guilty plea, the sentencing court's articulation of a starting point (here, five years before the twenty percent reduction) provides a transparent basis for appellate review of whether the final sentence sits within range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 319, 327, 328, 330
- Criminal Appeal Act 1912 (NSW), s 5F
- Police Integrity Commission Act 1996 (NSW), s 107

Cases
- Haddad and Treglia (2000) 116 A Crim R 312
- R v Bulliman (NSW CCA, unreported, 25 February 1993)
- R v Simpson [2001] NSWCCA 534
- R v Fish and Swan [2002] NSWCCA 196
- R v Giang [2001] NSWCCA 276
- R v Irwin [1999] NSWCCA 361