Citation: Church v R [2012] NSWCCA 149
Court: Court of Criminal Appeal, New South Wales
Date: 10 July 2012
Judge(s): McClellan CJ at CL, Price J, Button J (Button J delivered the leading judgment)
Background
The appellant was convicted in the District Court at Parramatta of one count of making an omission intending to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The offence arose from her conduct during Local Court sentencing proceedings for an assault charge. After being found guilty of assault occasioning actual bodily harm, she allowed her solicitor to represent to the Magistrate that she was suffering from cancer, when she was not. The Magistrate placed her on a three-year good behaviour bond, expressly stating that her purported medical condition was the only reason she was not being sent to gaol.
The cancer deception was no spontaneous lie. Over several weeks before the Local Court proceedings, the appellant had shaved her head, worn a bandana, and appeared to attend medical appointments to reinforce the pretence. She also received approximately $200 raised at a community fundraiser held in her support. The sentencing Judge in the District Court rejected the appellant's evidence that the ruse was driven by a need for attention, finding it was done in anticipation of a conviction.
The District Court sentenced her to a total term of 2 years 8 months imprisonment with a non-parole period of 1 year 4 months, having found special circumstances that justified departing from the statutory ratio. She sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge erred in forming a view about what sentence the Local Court ought to have imposed for the assault offence, and in taking that into account when assessing the seriousness of the public justice offence
- Whether the sentencing judge failed to take into account extra-curial punishment (specifically, adverse national media coverage of the appellant)
- Whether the sentencing judge erred in treating specific deterrence as a significant sentencing consideration given the appellant's personal circumstances
- Whether the sentence of 2 years 8 months imprisonment was manifestly excessive
Decision
Ground 1: Hypothetical Local Court sentence. Button J held that it was appropriate for the sentencing judge to consider the effect the public justice offence had on the Local Court proceedings. The seriousness of a perverting-justice offence cannot be assessed in isolation from what was at stake in the proceedings it affected. The sentencing judge had not purported to determine what "must" or "would" have happened; he formed a view about what "ought" to have been imposed, which is a permissible and distinct exercise. No error of law or fact was established.
Ground 2: Extra-curial punishment. Button J accepted that adverse media coverage can, in appropriate circumstances, constitute a form of extra-curial punishment that a court may take into account. However, the sentencing judge expressly referred to the media attention, and the Court of Criminal Appeal was not persuaded that he failed to give it any weight. This ground was not established.
Ground 3: Specific deterrence. The sentencing judge found specific deterrence to be a significant factor, citing the appellant's dishonesty, lack of remorse, and prior relevant criminal history. Button J rejected the submission that the appellant's limited intelligence and disadvantaged background made specific deterrence irrelevant. The sentencing judge was entitled to take the view that the prolonged and deliberate nature of the deception warranted a deterrent response.
Ground 4: Manifest excess. Reviewing sentencing statistics and comparable cases, Button J characterised the sentence as stern but not impermissibly so. Public justice offences directly attack the administration of justice and can be more serious than many offences against property or even the person. The Court was not persuaded that the sentence fell outside the available discretion of the sentencing judge to a degree that would constitute error under the principles in Markarian v R and House v R.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In sentencing for a perverting-the-course-of-justice offence, forming a view about what sentence ought to have been imposed in the proceedings that were perverted is a legitimate and relevant sentencing exercise, provided it is framed as an assessment of what was at stake rather than a determination of what "would" or "must" have occurred.
- The gravity of an offence under s 319 of the Crimes Act 1900 (NSW) is properly assessed by reference to what the offender stood to gain through the perversion, including the severity of punishment avoided.
- Extra-curial punishment through adverse media coverage is a recognised sentencing consideration, but the Court of Criminal Appeal will not intervene unless it is affirmatively established that the sentencing judge failed to give it any weight.
- A prolonged and premeditated course of deception, as opposed to a spontaneous lie, weighs against any submission that specific deterrence should be diminished by reference to the offender's personal vulnerability or limited sophistication.
- Sentencing statistics drawn from JIRS (the Judicial Information Research System) provide useful comparative context but are rarely determinative on a manifest excess ground; the court must still evaluate the individual circumstances of the offence and offender.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice; maximum penalty 14 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Kenny v R [2010] NSWCCA 6
- Markarian v R [2005] HCA 25; (2005) 228 CLR 257
- R v Allpass (1993) 72 A Crim R 561
- R v Einfeld [2010] NSWCCA 87; (2010) 200 A Crim R 1
- R v Nguyen [2004] NSWCCA 332; (2004) 149 A Crim R 343