Citation: R v King [2011] NSWCCA 274
Court: Court of Criminal Appeal, New South Wales
Date: 14 December 2011
Judge(s): McClellan CJ at CL, Adams J, Hoeben J
Background
The respondent had been sentenced for a serious arson offence committed on 7 December 2007, when he broke into business premises in Wagga Wagga and set them alight. In the course of those sentencing proceedings, he told his psychologist and gave sworn evidence that his brother had died in a motor vehicle accident shortly before the fire, claiming this contributed to his emotional state at the time. In fact, his brother died one week after the fire, on 14 December 2007.
To support this false account, the respondent's partner falsified a newspaper death notice to show an earlier date of death. The deception was discovered during the sentence proceedings when a police check revealed the true date, and an official death certificate confirmed it. The respondent was subsequently charged with perjury and perverting the course of justice.
On 21 June 2011, the respondent was sentenced for those two offences. The sentences were imposed wholly concurrently with the existing arson sentence. The Crown appealed on the ground that full concurrency rendered the sentences manifestly inadequate.
Legal Issues
- Whether the sentencing judge erred by making the sentences for perjury and perverting the course of justice wholly concurrent with the pre-existing arson sentence.
- Whether the resulting sentences were manifestly inadequate, either because of complete concurrency or otherwise.
- Whether the principle of totality was correctly applied in circumstances where the dishonesty offences were sentenced after the primary offence.
Decision
Adams J (with whom McClellan CJ at CL and Hoeben J agreed) dismissed the Crown appeal. His Honour identified the true question as whether the sentencing judge erred, in the House v R sense, in concluding that the overall sentence adequately reflected the totality of the respondent's criminality. That is a high bar for a Crown appeal to clear.
Adams J rejected the Crown's argument that the mere chronology of sentencing, namely that the primary sentence had already been fixed before the dishonesty offences were dealt with, compelled some degree of accumulation. To treat chronological order as a substantive rule would be a mistake. The court noted that had all offences been sentenced at the same time, a sentencing judge could lawfully have imposed a somewhat lower arson sentence and accumulated compensating periods for the dishonesty offences, arriving at the same total. The sentencing judge implicitly applied that kind of reasoning.
The court accepted there was a proper basis for concluding that some additional imprisonment was warranted. However, the respondent was already serving a total term of over six years and three months. The lie was quickly discovered, the offending was characterised as an immature attempt to obtain undeserved sympathy rather than a scheme to escape conviction, and the respondent had suffered a genuinely severe childhood. Adams J concluded that even if some further accumulation were warranted, any such adjustment would amount to "tinkering" and would not justify intervention.
Orders Made
• The appeal be dismissed
Key Takeaways
- Complete concurrency between sentences for separate crimes is not automatically impermissible; the operative question is whether the overall sentence adequately reflects the totality of the offender's criminality.
- The Court of Criminal Appeal confirmed that chronological order of sentencing does not create a substantive rule requiring accumulation. A sentencing judge dealing with later offences may properly consider whether the existing sentence already captures the relevant criminality.
- Where a Crown appeal challenges the exercise of a sentencing discretion, the applicable standard remains that established in House v R (1936): error must be demonstrated, not merely a preferable outcome.
- In dismissing the appeal, the Court indicated that even had some error been found, any corrective accumulation on these facts would have been so minor as to constitute mere tinkering, making appellate intervention inappropriate.
- The perjury involved falsifying a death notice and lying on oath about the date of a relative's death to obtain sentencing sympathy, rather than to evade conviction for the primary offence. The court treated this distinction as relevant to the overall assessment of criminality.
Legislation and Cases Referenced
Legislation:
- Perjury (maximum penalty: 10 years imprisonment)
- Perverting the course of justice (maximum penalty: 14 years imprisonment)
Cases:
- R v Cutrale [2011] NSWCCA 214
- House v R [1936] HCA 40; (1936) 55 CLR 499