Citation: Regina v Sultan [2005] NSWCCA 461
Court: NSW Court of Criminal Appeal
Date: 2 December 2005
Judge(s): Grove J, Sully J, Howie J
Background
The appellant was on bail during a District Court criminal trial in which he was one of the accused. In the early hours of 29 July 2003, he attended a service station and spoke to a man whose wife was serving as a juror in that very trial. The precise content of the exchange was disputed at trial, but both parties accepted that the appellant said words to the effect of asking the husband to tell his wife to "listen to the evidence carefully."
The appellant was convicted after trial of approaching a person with intent to influence a juror, contrary to s 323(b) of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment. He was also separately sentenced following a guilty plea for harassing a former juror to obtain information about jury deliberations, contrary to s 68A of the Jury Act 1977. Only the sentence for the s 323(b) offence was the subject of this appeal.
Sorby DCJ in the District Court sentenced the appellant to imprisonment with a non-parole period, finding that any intentional act to influence a juror by an accused person on trial was objectively serious. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to properly assess the nature and quality of the influence the appellant intended to bring to bear on the juror
- Whether the absence of any sinister, threatening, or improper purpose in the intended communication was a relevant factor going to the appropriate sentence
- Whether the sentence imposed adequately reflected both personal and general deterrence while also accounting for the particular character of the offending
Decision
The Court of Criminal Appeal accepted that the offence under s 323(b) is complete regardless of whether the intended influence on a juror is sinister or entirely benign. The legislature plainly intended that no outside influence of any kind should be directed at a juror other than through the proper conduct of proceedings. Conviction was therefore appropriate.
However, the court found that Sorby DCJ made an error in sentencing by failing to assess the quality of the influence the appellant intended to communicate. The Crown itself did not contend there was any threat, improper suggestion, or attempt to secure a favourable verdict. The only influence sought was an adjuration to the juror to listen carefully to the evidence, which, as Grove J observed, would not ordinarily be considered objectionable conduct by a juror at all.
The court accepted the sentencing judge's finding of special circumstances, justifying a departure from the standard non-parole to total term ratio in the appellant's favour, and adopted the judge's findings on subjective matters. The court considered that both personal and general deterrence required a clear custodial sentence, but that the particular benign character of the intended influence warranted a reduced term and release in the near future.
The s 68A offence, for which the sentence had already been served, was noted to sit at the lower end of the scale. The sentencing judge had himself questioned how the conduct constituted an offence at all, and the court accepted it had been motivated by mere curiosity rather than any improper purpose.
Orders Made
- Leave to appeal against sentence granted and appeal allowed
- Sentence for the s 323(b) Crimes Act 1900 offence quashed and replaced with imprisonment comprising a non-parole period of six months commencing 19 June 2005 and expiring 18 December 2005, with a parole term of six months commencing 19 December 2005 and expiring 18 June 2006
- The appellant ordered released to parole on 18 December 2005
Key Takeaways
- Under s 323(b) of the Crimes Act 1900, the offence of approaching a person with intent to influence a juror is complete regardless of whether the intended influence is sinister or benign in nature.
- For sentencing purposes, however, the nature and quality of the intended influence is a directly relevant consideration that a sentencing court must assess; failure to do so constitutes a sentencing error.
- The Court of Criminal Appeal confirmed that both personal and general deterrence strongly favour custodial sentences for juror-influence offences, given the fundamental importance of protecting the integrity of jury proceedings.
- Where the intended influence amounted to nothing more than asking a juror to listen carefully to the evidence, without any threat, inducement, or improper purpose, that characteristic properly reduces the seriousness of the offence at the sentencing stage.
- A co-accused who had pleaded guilty to a similar offence was placed on a good behaviour recognisance by a different judge, a comparator the Court of Criminal Appeal had regard to in the sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 323(b) (approaching a person with intent to influence a juror; maximum penalty seven years imprisonment)
- Jury Act 1977 (NSW), s 68A (harassing a juror to obtain information about jury deliberations)
Cases cited: No cases were cited in the judgment.