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District Court 19 March 2007

Larkin v NSW DPP

[2007] NSWDC 80

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE

Citation: Larkin v NSW DPP [2007] NSWDC 80
Court: District Court of New South Wales
Date: 19 March 2007
Judge(s): Nield DCJ

Background

The appellant was summonsed under the Corporations Act 2001 (Cth) to appear before a Deputy Registrar of the Equity Division of the Supreme Court for examination about the affairs of a company. He appeared on 15 March 2002 and was sworn in before answering 238 questions over approximately one hour.

Unknown to the appellant, he had been under surveillance from early that morning until he entered the Supreme Court building. When examined about his movements that day, he gave answers that were false and contradicted by the surveillance evidence.

The appellant was charged with making a false statement on oath, knowing it to be false, contrary to section 330 of the Crimes Act 1900 (NSW). The charge was dealt with summarily in the Local Court, where he was convicted and sentenced. He then appealed to the District Court against both conviction and sentence.

  • Whether the Corporations Act 2001 (Cth) "covers the field" in relation to conduct during a compulsory examination, such that the state offence under section 330 of the Crimes Act 1900 (NSW) is rendered inoperative by section 109 of the Constitution (inconsistency between Commonwealth and state laws)
  • Whether the conviction was otherwise sound
  • What sentence was appropriate for the offence

Decision

The appellant argued that the Corporations Act, as a comprehensive Commonwealth scheme governing compulsory examinations, occupied the legislative field and left no room for the state criminal law to operate. The District Court rejected this argument, finding that the Corporations Act does not cover the field in a way that displaces the state offence of making a false statement on oath under section 330 of the Crimes Act. The conviction was confirmed.

On sentence, the court assessed the objective seriousness of the offence, the appellant's personal circumstances (including his age, health, and previous good character), and the purposes of sentencing. The court placed significant weight on general deterrence, observing that lying under oath strikes at the foundation of the judicial system and must attract a custodial response. The court noted that personal deterrence was less pressing in this case, given the appellant's background, but that general deterrence could not be overlooked.

The magistrate's sentence was set aside and replaced. Balancing all relevant factors, including the passage of time since the offence in March 2002, the appellant's age, his lack of prior criminal history, and the fact that he had never served a prison sentence, the court imposed a 12-month term of imprisonment. The court suspended execution of the sentence entirely, with the appellant required to enter into a good behaviour bond for the same period.

Orders Made

  • Appeal against conviction dismissed; magistrate's conviction confirmed
  • Magistrate's sentence set aside
  • Appellant sentenced to 12 months imprisonment, with a non-parole period of six months and a parole period of six months
  • Execution of the sentence suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 for the duration of the sentence, conditional on the appellant entering into a good behaviour bond and appearing for sentence if called upon for any breach

Key Takeaways

  • The District Court held that the Corporations Act 2001 (Cth) does not "cover the field" in relation to conduct during a compulsory examination under section 596A, leaving the state offence of making a false statement on oath under section 330 of the Crimes Act 1900 (NSW) operative and unaffected by section 109 of the Constitution.
  • A charge under section 330 of the Crimes Act can be brought where an examinee makes false statements during a court-supervised examination, even where that examination is convened under Commonwealth corporate law.
  • General deterrence carries particular weight in sentencing for offences involving false statements on oath, given the court's view that such conduct directly undermines the integrity of the judicial process.
  • Suspension of a custodial sentence remains available where the offender's age, prior character, health, and the passage of time collectively justify that course, even where the offence is serious in principle.
  • In dismissing the conviction appeal, the court confirmed that the coexistence of Commonwealth examination procedures and state perjury-related offences does not, of itself, give rise to constitutional inconsistency.

Legislation and Cases Referenced

Legislation
- Corporations Act 2001 (Cth), sections 596A and related provisions
- Crimes Act 1900 (NSW), section 330
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 12
- Mental Health (Criminal Procedure) Act (NSW), section 32
- Commonwealth Constitution, section 109

Cases
- R v Bulliman (NSW Court of Criminal Appeal, 25 February 1993)
- R v Aristodemou (NSW Court of Criminal Appeal, 30 June 1994)
- R v Chapman (NSW Court of Criminal Appeal, 21 May 1998)