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Court of Criminal Appeal 11 March 2005

Regina v Pile

[2005] NSWCCA 74

Public order & justice offences

Citation: Regina v Pile [2005] NSWCCA 74
Court: New South Wales Court of Criminal Appeal
Date: 11 March 2005
Judge(s): Spigelman CJ, Grove J, Bell J

Background

The applicant had been convicted of the armed robbery of a post office and, during his sentencing proceedings, gave evidence on oath identifying his co-offender. He was subsequently held at a correctional centre where the co-offender was also detained. Through a mesh screen separating them, he received an instruction from that co-offender to change his story, accompanied by a threatening gesture from another inmate.

When produced to give evidence at the co-offender's trial, the applicant falsely named a different person as his accomplice, directly contradicting his earlier sworn evidence. He admitted this was false during the trial itself, essentially confessing to perjury in the witness box. He was later charged with and pleaded guilty to perjury under the Crimes Act 1900.

In the District Court, Morgan DCJ sentenced the applicant to a fixed term of nine months' imprisonment, to be accumulated on the non-parole period of the sentence he was already serving. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the District Court erred in its assessment of the objective seriousness of the perjury offence, particularly in light of the duress the applicant faced in custody
  • Whether the nine-month fixed term was manifestly excessive in all the circumstances
  • What weight should be given to the applicant's duress, guilty plea, remorse, and rehabilitation prospects when re-sentencing for perjury

Decision

Bell J (with whom Spigelman CJ and Grove J agreed) identified error in the sentencing judge's assessment of the objective seriousness of the offence. Although perjury is treated seriously by the Court of Criminal Appeal, the circumstances here were unusual: the applicant acted under a degree of duress, having been placed in proximity to the very person whose guilt he had earlier sworn to, and having received what amounted to a threat before giving evidence.

On re-sentencing, Bell J took into account the mitigating factors under the Crimes (Sentencing Procedure) Act 1999, including the duress (relevant under s 21A(3)(d)), the applicant's prospects of rehabilitation, and his demonstrated remorse. Her Honour applied an approximately 15 percent discount to reflect both the utilitarian value of the guilty plea and the contrition it evidenced.

Bell J also noted the applicant's positive conduct during his existing sentence, including participation in day release, stable employment, no disciplinary infractions, and family support upon release. Taking all these matters together, a fixed term of five months was substituted for the original nine months.

Spigelman CJ agreed with the orders but noted he would not have upheld the appeal on the basis that nine months was in itself manifestly excessive. The appeal succeeded because specific legal error had been identified in the sentencing approach, not merely because the sentence seemed too long.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed and replaced with a fixed term of five months' imprisonment, commencing 16 August 2005 and expiring 15 January 2006

Key Takeaways

  • The Court of Criminal Appeal confirmed that perjury is treated as a serious offence, but the particular circumstances in which the false evidence was given remain highly relevant to the sentencing exercise.
  • Duress experienced by a prisoner in custody, including threats made by or on behalf of the person whose trial was affected by the perjury, can constitute a meaningful mitigating factor under the Crimes (Sentencing Procedure) Act 1999.
  • A guilty plea attracts a utilitarian discount even in perjury cases, and evidence of genuine remorse carries independent mitigating weight.
  • Spigelman CJ's concurring remarks clarify that the nine-month term was not itself manifestly excessive; the appeal succeeded only because identifiable legal error was established in the sentencing judge's reasoning.
  • Positive rehabilitation progress during an existing custodial sentence, including employment, absence of disciplinary charges, and family engagement, formed part of the re-sentencing calculus.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 327 (perjury)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(3)(d)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 38

Cases:
- R v Aristodemou (Unreported, NSWCCA, 30 June 1994)
- R v Bulliman (Unreported, NSWCCA, 25 February 1993)
- R v Chad (Unreported, NSWCCA, 13 May 1997)
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson (2000) 41 NSWLR 383
- R v Young [2003] NSWCCA 276