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Court of Criminal Appeal 6 February 2012

R v Moore

[2012] NSWCCA 3

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW CROWN APPEAL SENTENCING PLEA OF GUILTY PRINCIPLE OF TOTALITY NON

Citation: R v Moore [2012] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 6 February 2012
Judge(s): Bathurst CJ, Simpson J, Adamson J

Background

The respondent pleaded guilty in the District Court at Wagga Wagga to one count of doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900. The offence involved producing a forged letter to the Local Court in support of an application to vary bail conditions. The letter, typed by his son's girlfriend, purported to be from his employer and requested a change to his reporting conditions so he could attend a training course in Orange. Police had already confirmed the letter was not genuine before it was tendered, and the respondent withdrew the bail application.

The respondent was separately serving sentences for four counts of driving whilst disqualified. Those sentences had been appealed to the District Court, where English DCJ substituted revised sentences on the same day she sentenced the respondent for the perverting offence. The revised driving sentences produced an aggregate head sentence of 18 months with a non-parole period of 10 months, expiring 15 December 2011.

English DCJ sentenced the respondent to 18 months imprisonment for the perverting offence, with a non-parole period of 6 months also expiring 15 December 2011. The effect was that the non-parole period for the perverting offence was entirely absorbed within the non-parole period already running for the driving offences, while the head sentence extended the overall term by 4 months. The Director of Public Prosecutions appealed, contending the sentence was manifestly inadequate.

  • Whether the sentence imposed for the perverting the course of justice offence was manifestly inadequate under s 5D of the Criminal Appeal Act 1912
  • Whether the sentencing judge erred by constructing the sentence so that the non-parole period for the perverting offence was wholly subsumed within the non-parole period already imposed for the driving offences
  • Whether the principle of totality required any additional penalty beyond what was imposed

Decision

Simpson J (with whom Bathurst CJ and Adamson J agreed) dismissed the Crown appeal. Her Honour acknowledged that the perverting offence was a serious matter warranting some additional penalty, given it was entirely separate and distinct from the driving offences. However, the question was whether no other sentencing outcome was open to the judge, and the Court was not persuaded to that standard.

On the question of objective gravity, Simpson J noted that the purpose of the forgery was relatively modest: to permit the respondent to travel to Orange, a variation he may have been able to achieve through legitimate means. This placed the offence at a less serious point on the scale when compared to perverting offences aimed at, for example, securing an unwarranted acquittal on serious charges.

The Court rejected the Crown's argument that the sentence produced no real additional penalty. The head sentence did accumulate by 4 months over the driving sentences. Critically, Simpson J emphasised that a period of parole is itself a form of sentence: if the respondent breached parole conditions, he would return to custody to serve the balance of the term. The parole tail attached to the perverting offence therefore carried real consequences and could not be dismissed as no punishment at all.

On totality, the Court was not persuaded that the overall sentence, a head sentence of 1 year and 10 months with a 10-month non-parole period, was insufficient having regard to the full picture of the offending. No error warranting intervention was established.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • A period of parole is itself a component of the sentence: the Court of Criminal Appeal confirmed that characterising a sentence as imposing "no additional penalty" simply because non-parole periods overlap is incorrect, where the head sentence accumulates and parole conditions carry real consequences for breach.
  • In dismissing the appeal, the Court applied the established threshold for Crown sentence appeals: it was not sufficient for the DPP to show a different sentence might have been imposed; the Crown had to demonstrate no other course was reasonably open to the sentencing judge.
  • Objective gravity for perverting the course of justice offences is assessed on a spectrum. The court placed this offence at the lower end, given the forgery was directed at obtaining a modest bail variation rather than at defeating a serious criminal prosecution.
  • Under s 51 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may specify conditions of release at the expiration of a non-parole period, and those conditions form part of the sentence's punitive character.
  • The principle of totality required the overall sentence to be assessed as a whole. The aggregate term of 1 year and 10 months with a 10-month non-parole period was found to be a significant term that satisfied the totality requirement across all of the respondent's offending.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice; maximum 14 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 50, 51

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383