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Court of Criminal Appeal 4 April 2007

TAYLOR v. REGINA

[2007] NSWCCA 99

Assault & violencePublic order & justice offences

Citation: Taylor v Regina [2007] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 4 April 2007
Judge(s): McClellan CJ at CL, Hoeben J, Hall J

Background

The appellant pleaded guilty in the District Court to one count of malicious wounding and two counts of perverting the course of justice. The wounding occurred on 24 September 2004, when the appellant stabbed a man in the abdomen during a confrontation outside a hotel, causing a penetrating wound that required multiple operations. The appellant was arrested and remanded in custody shortly afterwards.

While in custody, the appellant orchestrated two separate courses of conduct designed to avoid conviction. He repeatedly pressured his then-partner to make false statements to police, attributing the stabbing to another woman. He also enlisted his mother in a scheme to fabricate a matching garment and procure false witnesses. Both schemes were revealed through intercepted telephone calls from the correctional facility.

The sentencing judge, Goldring DCJ, imposed cumulative sentences: three years for the wounding (with a non-parole period of two years and three months), followed by concurrent sentences for the two perverting charges totalling two years and three months (with the same non-parole period). The total sentence was five years and six months, with a non-parole period of four years and six months. The appellant sought leave to appeal, arguing the structure of the sentences was manifestly excessive or otherwise in error.

  • Whether the sentencing judge erred in imposing wholly cumulative non-parole periods for the malicious wounding and the perverting the course of justice offences, rather than making the sentences partially concurrent
  • Whether the overall sentence was manifestly excessive given the appellant's subjective circumstances
  • Whether the sentencing structure correctly reflected the principle that the perverting offences were discrete from the underlying wounding

Decision

Hall J, delivering the principal judgment, found no error of principle in the sentencing judge's approach or in the structure of the sentences imposed. His Honour examined the factual background extensively, noting that the conduct constituting the perverting charges extended over many months and was a planned course of action involving multiple participants. The gravity and persistence of that conduct supported the cumulative approach taken below.

McClellan CJ at CL agreed, adding that although the appellant's motivation to pervert the course of justice arose from having been charged with wounding, the two categories of offending were wholly discrete exercises of criminality. The wounding was complete at the time it occurred. It was not until the appellant had been arrested and placed in custody that he embarked on the separate criminal enterprise of fabricating evidence. That sequence of events distinguished this case from one in which a person takes steps to avoid apprehension as part of the same criminal transaction.

McClellan CJ at CL also emphasised the inherent seriousness of perverting the course of justice. The maximum penalty for that offence under the Crimes Act 1900 is 14 years, twice the maximum for malicious wounding. While some overlap between perverting offences and an underlying charge is inevitable, the Court stressed that the two remain separate criminal acts that warrant distinct and significant punishment. Partial concurrency of the non-parole periods was described as an available option, but the sentencing judge's discretion had not miscarried by declining to adopt it.

Hoeben J agreed with both Hall J and the additional remarks of McClellan CJ at CL. The Court unanimously granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Perverting the course of justice and the underlying offence that prompted it are separate criminal acts, and sentencing courts are not required to impose concurrent or partially concurrent sentences simply because one offence motivated the other.
  • Where conduct to pervert the course of justice begins only after the offender has been arrested and remanded in custody, a sentencing court may treat that conduct as wholly discrete from the original offence and impose cumulative non-parole periods without error.
  • The Court of Criminal Appeal confirmed the seriousness of perverting the course of justice, noting its maximum penalty of 14 years under the Crimes Act 1900 is double that for malicious wounding, reflecting the distinct harm such conduct causes to the justice system.
  • No error was established in the overall sentencing structure where the two perverting offences ran concurrently with each other but cumulatively on the wounding sentence, producing a total term of five years and six months with a non-parole period of four years and six months.
  • A planned course of perverting conduct, sustained over months and involving the manipulation of multiple persons, may be treated as an aggravated exercise of that offending category.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): s 35(1)(a) (malicious wounding), s 319 (perverting the course of justice)

Cases
- Regina v Taouk (1992) 65 A Crim R 387
- Pearce v The Queen (1998) 194 CLR 610