Citation: Behman v Regina [2014] NSWCCA 239
Court: NSW Court of Criminal Appeal
Date: 29 October 2014
Judges: Hoeben CJ at CL, McCallum J, Garling J
Background
The appellant was a serving police officer who pleaded guilty to one count of giving false evidence to the Police Integrity Commission and was found guilty by jury of eight counts of making a false statement to obtain a financial advantage. The false statements arose from the appellant nominating overseas residents as the drivers of his vehicle when he received speed camera infringement notices. He did so on seven occasions between December 2004 and July 2007, avoiding fines totalling $761. The eighth count related to aiding and abetting his partner to do the same thing.
The offence before the Police Integrity Commission arose when the appellant, under oath, denied having falsely nominated another person as the driver of his vehicle. The maximum penalty for each offence was five years' imprisonment.
At first instance in the District Court, the sentencing judge imposed an aggregate sentence of three years' imprisonment with a non-parole period of two years. The judge indicated that, had separate sentences been imposed, each offence on the indictment would have attracted 16 months and the Police Integrity Commission offence 18 months. The appellant sought leave to appeal.
Legal Issues
- Whether the sentencing judge erred in assessing the objective gravity of the false statement offences by failing to give adequate weight to the very small financial advantage obtained
- Whether the indicative sentences for the false statement offences were manifestly excessive, infecting the aggregate sentence
- Whether the appellant had a justifiable sense of grievance arising from a marked disparity between his sentence and that imposed on another offender (Grealish) for similar conduct
- Whether the sentencing judge failed to apply the principles in Pearce v The Queen when constructing the aggregate sentence
Decision
The Court dismissed the first ground, finding no patent error in the sentencing judge's treatment of the small amounts involved. The judge had expressly acknowledged the modest sums but weighed them against the repetitious nature of the offending, the appellant's position as a police officer, and his insider knowledge of enforcement procedures. That assessment was open to the sentencing judge.
On the parity ground, the Court noted that Grealish was not a co-offender in the strict sense but merely a person who committed similar crimes. Strict parity principles therefore did not apply. However, the Grealish sentence remained a relevant benchmark. The Court accepted that the appellant's conduct was more serious than Grealish's, given it extended over a longer period and increasingly demonstrated disregard for laws he was sworn to uphold.
The critical error lay in the indicative sentences. Under Pearce v The Queen, sentences for multiple offences must reflect increasing severity as the number of offences grows, so that later offences attract greater punishment than earlier ones. The indicative sentences here were uniform at 16 months for each count, regardless of the progression of offending. This uniformity revealed a departure from the Pearce principles and constituted error that infected the aggregate sentence.
In resentencing, McCallum J applied a graduated approach: the first offence warranted only a non-custodial option; counts two and three attracted three months each; counts four through seven six months each; and the final count nine months. The indicative sentence for the Police Integrity Commission offence was left undisturbed. The revised aggregate was two years' imprisonment with a non-parole period of 18 months.
Orders Made
- Leave to appeal granted (time for seeking leave extended to 27 March 2014)
- Appeal allowed
- Original sentence quashed
- Appellant resentenced to an aggregate term of imprisonment with a non-parole period of 18 months commencing 15 February 2013 and concluding 14 August 2014, with a balance of term of six months concluding 14 February 2015
- Appellant released immediately
Key Takeaways
- Under the Pearce v The Queen principles, sentences for a series of offences must reflect escalating seriousness as offending continues; a uniform indicative sentence across all counts can reveal an appellable failure to apply this approach.
- Where a sentencing judge exercises the aggregate sentencing power under s 53A of the Crimes (Sentencing Procedure) Act 1999, the indicative sentences recorded for each offence remain a window through which appellate courts can detect errors in the underlying sentencing exercise.
- Parity principles apply strictly only to co-offenders; where two offenders commit similar but independent crimes, the sentence imposed on one is a relevant reference point but does not automatically ground a grievance in the other.
- A first offence in a series may not of itself warrant imprisonment, and a sentencing court may acknowledge this in the indicative sentence while still incorporating that offence within a custodial aggregate, provided the remaining offences justify that aggregate.
- An offender's position as a police officer, combined with insider knowledge used to evade detection, can properly elevate the objective seriousness of offences even where the direct financial benefit obtained is modest.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 178BB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Police Integrity Commission Act 1996 (NSW), s 107(1)
Cases
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Grealish v R [2013] NSWCCA 336
- R v F [2002] NSWCCA 320; (2002) 132 A Crim R 307
- Einfeld v The Queen [2010] NSWCCA 87; (2010) 200 A Crim R 1
- R v Einfeld [2009] NSWSC 119
- Truong v R; R v Lee; Nguyen v R; R v Nguyen [2013] NSWCCA 36