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District Court 18 February 2005

R v ROGERSON

[2005] NSWDC 22

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCE FORM 1

Citation: R v Rogerson [2005] NSWDC 22
Court: District Court of New South Wales
Date: 18 February 2005
Judge(s): Berman SC DCJ

Background

The offender, a former New South Wales police detective, pleaded guilty to one count of giving false evidence before the Police Integrity Commission (PIC). He gave sworn evidence denying knowledge that a Liverpool City Council employee, with whom he was personally acquainted, had been receiving bribes. That denial was a lie. A second instance of false evidence was taken into account on a Form 1 (a procedure by which a related offence is acknowledged and considered during sentencing without a separate conviction being entered).

The false evidence arose in the context of a PIC investigation in 1998 and 1999 into corrupt activity at Liverpool City Council. Listening devices had recorded conversations in which the offender discussed the corrupt conduct of his associate, who was taking secret commissions. The offender was summonsed before PIC on 25 May 1999, appeared after his co-offender and wife had already given false evidence in his presence, and then lied under oath himself.

The court also noted that the offender's wife had been sentenced earlier for her role in the same proceedings. Several sentencing principles articulated in that earlier matter were restated and applied here.

  • Whether a full-time custodial sentence was required for the offence of giving false evidence to PIC, or whether the circumstances were sufficiently exceptional to justify a non-custodial sentence
  • What weight should be given to general deterrence, personal deterrence, and retribution in sentencing for this category of offence
  • Whether factors including delay in prosecution, the offender's age, health, and mental condition, and the comparative seriousness of the offence constituted "extraordinary and compelling circumstances" warranting a departure from the usual sentencing approach
  • Whether special circumstances existed justifying a variation in the ratio between the head sentence and the non-parole period

Decision

Berman SC DCJ confirmed that the Court of Criminal Appeal has firmly established that offences involving the giving of false evidence in judicial or commission proceedings will ordinarily attract full-time custodial sentences. Departures from this principle require extraordinary and compelling circumstances. General deterrence is paramount: false evidence strikes at the foundation of the administration of justice and undermines public confidence in institutions such as PIC and the Independent Commission Against Corruption.

The defence argued that a combination of factors, including prosecution delay, the relatively lower seriousness of the particular falsehoods, the offender's mental condition, and the hardship of serving a sentence at Cooma Gaol, collectively justified a non-custodial sentence. The court considered each of these matters individually and rejected the submission that, taken together, they reached the threshold of exceptional circumstances.

The court emphasised that sentencing must reflect the objective seriousness of the offending conduct, not merely focus on the personal circumstances of the offender. PIC was engaged in the important community function of identifying and eliminating police corruption. Those summonsed to give evidence before such commissions must understand they are required to tell the truth, regardless of their personal views about how the commission operates or how they are treated during proceedings.

Special circumstances were found, however, based on the offender's age and health, justifying a larger than usual proportion of the sentence being allocated to the parole period. The non-parole period was set at one year out of a total sentence of two and a half years.

Orders Made

  • The offender is sentenced to imprisonment for two and a half years, commencing 18 February 2005
  • Non-parole period set at one year, expiring 17 February 2006, at which time the offender is to be released to parole

Key Takeaways

  • The Court of Criminal Appeal's position is settled: giving false evidence in proceedings before bodies such as PIC or ICAC will ordinarily result in a full-time custodial sentence, absent extraordinary and compelling circumstances
  • A combination of mitigating factors, including delay, the nature of the specific falsehoods, the offender's health, and prison conditions, does not automatically reach the threshold required to displace the presumption in favour of full-time custody
  • General deterrence carries primary weight when sentencing for false evidence offences, because such conduct directly undermines the administration of justice and the integrity of investigative bodies
  • Special circumstances within the meaning of the sentencing legislation can still be found, and did justify an extended parole period here, based on the offender's age and health
  • The maximum penalty applicable to the specific perjury offence charged is relevant context: the court noted that different perjury-related offences carry maximum penalties of five, ten, or fourteen years, and that the applicable maximum affects how sentences across cases can properly be compared

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)

Cases:
- R v Bulliman (unreported, NSWCCA, 25 February 1993)
- R v Aristodemou (unreported, NSWCCA, 30 June 1994)
- R v Chad (unreported, NSWCCA, 13 May 1997)
- R v Chapman (unreported, NSWCCA, 21 May 1998)
- R v Treglia [2002] NSWCCA 338
- R v Salesi Fifita (unreported, NSWCCA, 26 November 1992)