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Court of Criminal Appeal 28 March 2011

Winter v R

[2011] NSWCCA 59

Public order & justice offences
CRIMINAL LAW PERVERTING THE COURSE OF JUSTICE

Citation: Winter v R [2011] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 28 March 2011
Judges: McClellan CJ at CL, Blanch J, Hoeben J

Background

The appellant was convicted after trial of two counts of doing an act with intent to pervert the course of justice under s 319 of the Crimes Act 1900. Both offences concerned Joel Stockton, a Crown witness in the prosecution of the appellant's son on a breaking, entering and stealing charge.

The first offence involved the appellant creating a false retraction document, purportedly signed by Stockton, and arranging for it to be brought to the prosecutor and defence counsel without police involvement. The second offence, committed in July 2008, involved the appellant telephoning Stockton the Friday before his trial and threatening to burn down his house and his mother's home if he testified. She also sent him a series of threatening text messages referencing his daughter and mother. Her son subsequently pleaded guilty, rendering Stockton's evidence unnecessary.

At sentencing in the Penrith District Court, the appellant received a fixed term of two years on the first count, followed by a non-parole period of two years with a two-year balance of term on the second count, producing a total sentence of five years with a non-parole period of three years. She appealed on two grounds: fresh evidence relating to the medical condition of her son, and that the sentences were manifestly excessive.

  • Whether fresh evidence concerning the appellant's son's serious medical condition constituted "highly exceptional circumstances" sufficient to warrant a reduction in sentence on hardship grounds
  • Whether the total sentence of five years, including the degree of accumulation between the two counts, was manifestly excessive

Decision

Hardship to third parties. The court reaffirmed the principle from R v Edwards (1996) that only in highly exceptional circumstances will hardship to third parties justify reducing an otherwise appropriate custodial sentence. The appellant's son Brodie had undergone spinal surgery in June 2010, resulting in significant lower limb paralysis with a very poor prognosis for walking. He was being cared for by his elderly grandmother and a younger brother while his mother was imprisoned.

Despite accepting the seriousness of Brodie's condition, Blanch J concluded the circumstances did not meet the highly exceptional threshold. The son was receiving care from family members, his home had been modified, he was eligible for a rehabilitation program, and the appellant herself had health issues that would limit her capacity as a carer. The court also noted that even treating the material as fresh evidence, it did not change this assessment.

Manifest excess. Blanch J found each sentence was individually appropriate given the objective seriousness of the conduct. The second offence, which involved explicit threats against a witness, his child, and his elderly mother, was characterised as serious criminality committed after the first attempt to suppress testimony had apparently failed. The degree of accumulation between the two sentences was found to appropriately reflect the distinct and separate criminal acts. The court also noted that the appellant had maintained her innocence throughout the trial and had made only a belated and limited acknowledgement of guilt to the Probation Service, which offered little mitigatory weight.

Viewing the total sentence in the context of the appellant's subjective circumstances, including her age, health conditions, mental health history, disability pension status, and prior criminal record, the Court of Criminal Appeal was not satisfied the sentences were manifestly excessive. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the "highly exceptional circumstances" threshold for third-party hardship in sentencing (drawn from R v Edwards) is a demanding one: the fact that a dependant has serious medical needs does not automatically satisfy it, particularly where alternative care arrangements exist.
  • Under this threshold, courts weigh not only the severity of a dependant's condition but also the availability of other carers, access to support services, and the practical capacity of the offender to provide care, including the offender's own health.
  • Separate and sequential acts aimed at suppressing the same witness can each attract substantial sentences, with appropriate accumulation to reflect their distinct criminality rather than being treated as a single course of conduct.
  • A belated admission of guilt made only to a probation officer, following a contested trial, carries minimal mitigatory weight in sentencing.
  • In dismissing the appeal, the court reinforced that persistence in attempting to pervert the course of justice, including sustained lying during trial, is a significant aggravating factor going to the overall appropriateness of a custodial sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 319 (doing an act with intent to pervert the course of justice; maximum penalty 14 years)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Edwards (1996) 90 A Crim R 510
- R v Bednarz NSWCCA, unreported, 13 December 2000
- R v Dib NSWCCA, unreported, 13 September 1991
- Einfeld v Regina [2010] NSWCCA 87
- Regina v Marinellis [2001] NSWCCA 328
- R v Purtell [2001] NSWCCA 21
- R v Taouk (1992) 65 A Crim R 387
- R v Hakim CCA, unreported, 5 September 1996