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Court of Criminal Appeal 23 April 2004

R v Mahoney

[2004] NSWCCA 138

Public order & justice offences
CROWN APPEAL PERJURY

Citation: R v Mahoney [2004] NSWCCA 138
Court: New South Wales Court of Criminal Appeal
Date: 23 April 2004
Judges: Simpson J, Bell J, Shaw J

Background

The respondent, Robert Bradley Mahoney, pleaded guilty to two counts of perjury with intent to procure acquittal under s 328 of the Crimes Act 1900 (NSW), an offence carrying a maximum of 14 years' imprisonment. The perjury occurred during District Court proceedings in which he faced charges of supplying and manufacturing a commercial quantity of methylamphetamine. At a first (aborted) trial in February 2001, he swore he had purchased the drugs and was using 5 to 6 grams per day. At a second trial in 2003, he repudiated that account and instead swore he had obtained the drugs during an armed robbery, attributing his earlier false statements to coercion. The problem was that the alleged robber had died of a drug overdose more than a month before the robbery was said to have occurred.

The second trial resulted in conviction on the supply charge and acquittal on manufacturing. Mahoney was sentenced to four years' imprisonment for the drug offence. On 5 December 2003, District Court Judge English sentenced him on the perjury counts to fixed terms of 12 months and 15 months respectively, to be served concurrently with the existing drug sentence. Because those terms were entirely subsumed within the drug sentence already being served, no additional period of imprisonment was imposed for the perjury.

The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the perjury sentences were manifestly inadequate and failed to impose any real punishment for the distinct offending of giving false sworn evidence.

  • Whether the sentences imposed for the perjury counts were manifestly inadequate as a matter of principle.
  • Whether ordering that the perjury sentences be served entirely concurrently with an existing sentence, without any effective additional term, constituted an error of principle.
  • What the appropriate re-sentence should be, having regard to the aggravating features of the offences, the respondent's subjective circumstances, and the constraints governing Crown appeals.

Decision

Shaw J (with Simpson J and Bell J agreeing) found that the sentencing judge had erred in principle by failing to impose any real penalty for the perjury offences. Although the sentences were structured as discrete terms, they were wholly absorbed by the drug sentence then being served, meaning the respondent faced no meaningful additional punishment for conduct that was separate and distinct from the drug offending.

The Court emphasised that perjury is a serious offence that strikes at the foundations of the administration of justice. General deterrence is the paramount sentencing consideration in such cases. A sentence that is merely nominal or illusory cannot serve that function. The Court noted that the sentencing judge had appropriately accounted for mitigating factors, including the 25% discount for the early guilty pleas and the admission of perjury in the second trial, but had not grappled with the absence of any effective penalty.

Bell J added a brief observation: the re-sentence does not replicate the special circumstances finding made at the drug sentencing, because the need to impose a real measure of punishment required sentences that necessarily sat at the lower end of the available range rather than extending the parole component in the respondent's favour.

Orders Made

  • The appeal was granted and the original sentences were set aside.
  • Count 1: imprisonment for a fixed term of 18 months commencing 6 March 2005, expiring 5 September 2006, with a non-parole period of 9 months.
  • Count 2: imprisonment for a fixed term of 2 years, to be served concurrently with the Count 1 sentence, commencing 6 March 2005, expiring 5 March 2007, with a non-parole period of 12 months expiring 5 March 2006.

Key Takeaways

  • Perjury with intent to procure acquittal under s 328 of the Crimes Act 1900 (NSW) is treated as a distinctly serious category of offending, and general deterrence is the dominant sentencing consideration.
  • Where a perjury sentence is ordered to run concurrently with an existing sentence and adds no effective additional term, that structure may constitute an error of principle, not merely a lenient exercise of discretion.
  • The Court of Criminal Appeal confirmed that perjury is a separate and distinct form of criminality from the underlying offence in the proceedings during which the false evidence was given; it must be punished in its own right.
  • On a Crown appeal, the governing principles require that any substitute sentence be positioned towards the lower end of the appropriate range, even where that outcome does not fully reflect factors such as special circumstances found at the original sentencing.
  • An early guilty plea and an in-court admission of perjury are legitimate mitigating factors, but they do not justify a sentence that provides no real punitive or deterrent effect.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 327, 328
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Everett v The Queen (1994) 181 CLR 295
- R v Anthony Aristodemou (30 June 1994, NSWCCA, unreported)
- R v Baker [2000] NSWCCA 85
- R v Bavadra (2000) 115 A Crim R 152
- R v Bulliman (unreported, CCA, 25 February 1993)
- R v Chapman (Craig) (unreported, NSWCCA, 21 May 1998)