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Court of Criminal Appeal 21 June 2007

Warby v Regina

[2007] NSWCCA 173

Also reported as (2007) 171 A Crim R 575
Public order & justice offences
CRIMINAL LAW SENTENCING INFLUENCING WITNESS CIRCUMSTANCES OF AGGRAVATION AVAILABLE MAXIMUM SENTENCE.

Citation: Warby v Regina [2007] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 21 June 2007
Judges: McClellan CJ at CL, Hislop J, Smart AJ

Background

The appellant pleaded guilty in the District Court to doing an act with intent to persuade a person to give false evidence in a judicial proceeding, contrary to section 323(a) of the Crimes Act 1900. The charge arose from a conversation in March 2005 in which the appellant attended the home of a 16-year-old witness, who was subpoenaed to give evidence against him in pending larceny proceedings, and asked her to falsely say he was not involved.

The indictment referred only to section 323(a), which carries a maximum penalty of 7 years imprisonment. However, the sentencing judge in the District Court treated the offence as attracting a 14-year maximum under section 324, on the basis that the underlying larceny proceedings related to a "serious indictable offence." The appellant was sentenced to an 18-month non-parole period with a 6-month balance of term.

On appeal, the appellant challenged both the applicable maximum penalty and the overall length of the sentence as manifestly excessive.

  • Whether section 324 of the Crimes Act 1900 creates a separate and distinct offence from section 323, or merely provides an increased penalty for circumstances of aggravation
  • Whether the failure to charge the circumstances of aggravation in the indictment meant the sentencing court was limited to the 7-year maximum under section 323
  • Whether the sentence of 18 months (non-parole period) was manifestly excessive given the nature of the conduct

Decision

The Court of Criminal Appeal upheld the appeal on the first ground, finding that the sentencing judge had erred by applying the 14-year maximum under section 324 when that provision had not been charged in the indictment. The indictment referred solely to section 323(a), and that was the offence to which the appellant had pleaded guilty.

The Court accepted that section 324 qualitatively differs from section 323. It requires proof of additional elements, specifically that the conduct was directed at procuring the conviction or acquittal of a person charged with a serious indictable offence. Because those aggravating circumstances were not alleged in the indictment, the sentencing court was confined to the 7-year maximum applicable under section 323(a).

Having found error on the first ground, the Court did not separately address the manifest excess ground. Applying the correct maximum and taking into account all relevant subjective and objective factors, including that the offending was at the lower end of the spectrum, involved a single conversation, and carried a discount for the guilty plea, the Court resentenced the appellant to a 12-month non-parole period with a 4-month balance of term.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Original sentence quashed and replaced with imprisonment comprising a non-parole period of 12 months commencing 18 August 2006 and expiring 17 August 2007, with a balance of term of 4 months commencing 18 August 2007
  • The appellant directed to be released on parole on 17 August 2007

Key Takeaways

  • Section 324 of the Crimes Act 1900 is a qualitatively distinct provision from section 323: it requires proof of additional elements and, if relied upon by the Crown to attract the higher 14-year maximum, must be specifically charged in the indictment.
  • Where an indictment charges only a section 323(a) offence, the sentencing court is limited to the 7-year maximum under that provision, regardless of whether the agreed facts would also have satisfied the elements of section 324.
  • The Court of Criminal Appeal confirmed that failing to charge circumstances of aggravation in the indictment is not merely a formal defect where those circumstances are qualitatively different and carry a substantially increased maximum penalty.
  • In resentencing, the Court treated the conduct as falling at the lower end of the spectrum for this offence type, noting it was a single verbal approach without threats, physical force, or a sustained campaign of persuasion.
  • Larceny under section 117 of the Crimes Act 1900 carries a maximum of 5 years imprisonment and therefore prima facie constitutes a "serious indictable offence," though the Court left open whether summary determination of the underlying charges affected that classification.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4(1), 117, 323, 324, 327, 328
- Criminal Procedure Act 1986 (NSW), s 260

Cases
- Kingswell v The Queen (1985) 159 CLR 264
- MacKenzie v The Queen (1996) 190 CLR 348
- R v Lee (1994) 76 A Crim R 271