Citation: Tourni v R [2010] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judges: Simpson J, Fullerton J, RA Hulme J
Background
The appellant was a participant in a scheme involving the falsification of community service order (CSO) time sheets. A CSO requires an offender to perform unpaid community work as an alternative to full-time imprisonment. The scheme, uncovered by ICAC in 2005, involved a community service organiser at Bankstown Probation and Parole Service directing offenders to agencies willing to certify false time sheets, enabling those offenders to fraudulently claim completion of their court-ordered hours.
When summonsed to give evidence before ICAC in March 2006, the appellant initially denied any involvement. He later made admissions on oath after being confronted with intercepted telephone evidence, acknowledging that he had participated in creating a falsely certified time sheet in relation to a CSO he was serving, and that he had given false and misleading evidence to ICAC.
Court Attendance Notices (CANs) were not issued until June 2008, more than two years after the offending. The appellant pleaded guilty in the Local Court in December 2008 to two counts of giving false evidence to ICAC and one count of perverting the course of justice, and was committed to the District Court for sentence. He received an aggregate term of 24 months imprisonment with a 16-month non-parole period.
Legal Issues
- Whether the conduct as particularised in the CAN, specifically creating a false CSO time sheet between 22 and 28 February 2006, was sufficient to constitute the offence of perverting the course of justice under s 319 of the Crimes Act 1900
- Whether the sentencing judge erred by failing to give adequate weight to the delay of more than two years between the offending and service of the CANs
- Whether the sentencing judge failed to give adequate reasons for finding that the objective seriousness of the offence was above mid-range
- Whether the sentencing judge erred in treating the appellant's objective criminality as equivalent to that of a co-offender
Decision
The Court of Criminal Appeal dismissed the appeal against conviction, finding that the conduct particularised in the CAN did constitute a breach of s 319 of the Crimes Act. Creating a false CSO time sheet with intent to pervert the course of justice fell within the scope of the provision.
On sentence, the Court identified error in the sentencing judge's approach, accepting that the delay of over two years between the offending and the service of the CANs warranted specific consideration as a mitigating factor. The Court also found that the sentencing judge had not given adequate reasons on certain aspects of the sentencing exercise, including the assessment of objective seriousness.
The Court acknowledged that while general deterrence properly supported a sentence of full-time custody, the aggregate non-parole period was reduced by four months to reflect the delay in prosecution and the appellant's demonstrated rehabilitation in the intervening period. Special circumstances were found to ensure that the appellant's ongoing treatment needs could be met during the parole period.
Having regard to the appellant's rehabilitation and the circumstances of the appeal, the Court declined to frame the revised sentence in a way that would require the appellant to return to custody. The non-parole period on the perverting the course of justice charge was fixed to expire on the date the appellant had been released to bail pending the appeal's resolution.
Orders Made
- The appeal against conviction is dismissed
- The sentences imposed on the charges of giving false evidence are confirmed
- The sentence on the charge of perverting the course of justice is quashed and replaced with a term comprising a non-parole period commencing 27 March 2010 and expiring 22 October 2010, with a balance of term commencing 23 October 2010 and expiring 26 July 2011
- The appellant's release to parole is directed to have taken effect on 22 October 2010
Key Takeaways
- Creating a false community service order time sheet with intent to pervert the course of justice can constitute an offence under s 319 of the Crimes Act 1900, even where the particulars in the CAN are confined to that single act of falsification.
- Significant delay between the date of offending and the service of CANs is a mitigating factor that a sentencing judge must specifically address; failure to do so can constitute a sentencing error warranting appellate intervention.
- Adequate reasons are required when a sentencing judge assesses objective seriousness above the mid-range, particularly on a serious offence carrying a maximum penalty of 14 years imprisonment.
- In dismissing the conviction appeal but allowing the sentence appeal in part, the Court of Criminal Appeal recalibrated the sentence to avoid requiring an already-rehabilitated appellant to return to custody after a period of demonstrated good conduct, reflecting the principle that unnecessary interruptions to rehabilitation do not serve the ends of justice.
- A co-offender comparison is not automatically compelling; the Court noted that differences in subjective circumstances between offenders can undermine any asserted disparity in sentencing outcomes.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Independent Commission Against Corruption Act 1988 (NSW), s 87 (giving false evidence)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 111
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Telecommunications (Interception) Act 1979 (Cth)
Cases
- Einfield v R [2008] NSWCCA 215
- John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508
- Lodhi v R [2006] NSWCCA 121
- Marinellis v R [2006] NSWCCA 307
- R v Blanko [1999] NSWCCA 121; 106 A Crim R 303
- R v Purtell [2001] NSWCCA 21; 120 A Crim R 317
- R v Todd [1982] 2 NSWLR 517
- TJ v R [2009] NSWCCA 99
Other
- NSW ICAC, Report on Investigation into the Case Management and Administration of Community Service Orders (September 2006)