AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 20 December 2013

GREALISH, Peter v R

[2013] NSWCCA 336

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL AGGREGATE SENTENCE OF 2 YEARS WITH NON PAROLE PERIOD OF 1 YEAR IMPOSED TIME CUSTODY WOULD BE APPROPRIATE FULL

Citation: GREALISH, Peter v R [2013] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judge(s): Leeming JA, Adams J, Hall J (judgment delivered by Hall J, with whom Leeming JA and Adams J agreed)

Background

The appellant, a liquidator and officer of the Supreme Court, was convicted following a jury trial on four counts of obtaining a financial advantage by false or misleading statement under s 178BB(1) of the Crimes Act 1900. The offences arose from statutory declarations he made to the Infringement Processing Bureau between December 2006 and November 2007, falsely nominating a person as the driver of his vehicles in relation to traffic infringement notices. The nominated individual was subsequently found not to have been in Australia at the relevant times.

The appellant also pleaded guilty to one count of giving false evidence at a private hearing before the Police Integrity Commission (PIC) in September 2008, contrary to s 107(1) of the Police Integrity Commission Act 1996. He admitted his evidence before the Commission about the truthfulness of those statutory declarations was false, and that he knew it was false at the time.

In the District Court, the appellant received an aggregate sentence of two years' imprisonment with a non-parole period of one year. The indicative sentences were nine months' imprisonment for each of the four s 178BB(1) offences, and 18 months for the s 107(1) offence. He sought leave to appeal on multiple grounds, arguing errors in the sentencing approach and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge failed to consider an alternative to full-time custody across the full range of offences
  • Whether the sentencing judge erred in treating the appellant's position as a Supreme Court officer and liquidator as an aggravating factor in respect of the s 178BB(1) offences
  • Whether the indicative sentences of nine months for each s 178BB(1) offence were manifestly excessive, thereby infecting the aggregate sentence
  • Whether the sentence for the s 107(1) offence failed to account for relevant distinctions between the appellant and a co-offender (Behman) sentenced by a different judge, raising a parity concern

Decision

Alternatives to full-time custody: The Court rejected this ground. Given the gravity of the s 107(1) false evidence offence, full-time custody was the only sentencing option open to the judge in respect of that count. There was no requirement for the sentencing judge to have expressly addressed alternatives to full-time custody when sentencing for that offence together with the other matters.

Aggravation by professional position: The Court found error in the sentencing judge's reasoning on this point. The judge had found the appellant's role as a Supreme Court officer and liquidator aggravated the objective criminality of the s 178BB(1) offences. The Court of Criminal Appeal concluded this was not a legitimate basis for aggravation in respect of those particular offences, which involved the straightforward false nomination of a driver to avoid traffic fines.

Manifestly excessive indicative sentences for the s 178BB(1) offences: The Court upheld this ground. An indicative sentence of nine months' imprisonment for each offence was manifestly excessive having regard to the objective seriousness of those offences and the appellant's favourable subjective circumstances. On resentencing, the Court imposed a good behaviour bond for the first offence and an aggregate sentence of three months' imprisonment for the remaining three, reflecting their less serious character.

Parity with Behman: The sentencing judge had found the appellant bore a greater obligation not to give false sworn evidence than Behman, a police officer, did. The Court of Criminal Appeal found this comparison was erroneous: Behman's status as a police officer was a distinct aggravating feature, and the sentencing judge was wrong to rank the appellant's obligations as higher. Despite identifying this error, the Court concluded that no lesser sentence than 18 months for the s 107(1) offence was warranted on the overall facts, and that indicative sentence was left undisturbed.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed by the District Court on 26 April 2013 quashed
  • Appellant resentenced as follows:
  • For the s 178BB(1) offence committed on or about 6 December 2006: good behaviour bond of 18 months commencing 26 April 2013 and expiring 25 October 2014
  • For the three s 178BB(1) offences committed on or about 29 January 2007, 20 July 2007, and 20 November 2007: aggregate imprisonment of 3 months commencing 26 April 2013 and expiring 25 July 2013
  • For the s 107 Police Integrity Commission Act 1996 offence: non-parole period of 8 months commencing 26 May 2013 and expiring 25 January 2014, with a balance of term of 10 months expiring 25 November 2014
  • Earliest parole eligibility date: 25 January 2014

Key Takeaways

  • A sentencing court is not required to expressly address alternatives to full-time custody when the gravity of one of the offences being sentenced makes full-time imprisonment the only available option, even where that offence is sentenced alongside less serious matters.
  • The Court of Criminal Appeal confirmed that a professional role or position of trust is not automatically an aggravating feature in every offence context; it must bear a genuine relationship to the manner in which the offending was carried out.
  • Indicative sentences imposed as part of an aggregate under s 53A of the Crimes (Sentencing Procedure) Act 1999 can infect the overall aggregate with error if they are individually excessive, even where the final aggregate figure might otherwise appear unremarkable.
  • On parity, the fact that a co-offender was a serving police officer sentenced for the same category of offence does not mean that a non-police offender has a lesser obligation to tell the truth; each offender's aggravating features must be assessed on their own terms.
  • Identifying sentencing error does not automatically produce a reduced sentence: the Court declined to reduce the 18-month indicative term for the s 107(1) offence despite finding errors in the judge's comparative reasoning, concluding that no lesser sentence was warranted on the overall facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BB(1)
- Police Integrity Commission Act 1996 (NSW), s 107(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9(1), 53A

Cases:
- R v Irwan [1999] NSWCCA 361
- R v Einfeld [2009] NSWSC 119
- Einfeld v R [2010] NSWCCA 87
- R v Bulliman (NSWCCA, 25 February 1993, unreported)
- R v Aristomenou (NSWCCA, 30 June 1994, unreported)