Citation: R v RG [2015] NSWDC 221
Court: District Court of New South Wales
Date: 10 July 2015
Judge: Berman SC DCJ
Background
The offender faced sentence for conspiring to pervert the course of justice. The offence arose from conduct in 2009 and 2010, while the offender was remanded in custody at Goulburn Gaol awaiting trial on six serious armed robbery charges involving cash-in-transit armoured vehicles.
A significant drug dealer had been arrested and, as part of his cooperation with police, made statements implicating the offender in those robberies and indicated his willingness to give evidence at trial. The offender, aware that prison telephone calls were recorded, used coded language in a series of calls to agree with three associates that the cooperating witness would be threatened into altering or withdrawing his proposed evidence.
The threats escalated from subtle pressure to an explicit threat against the witness's sister. Despite all of this, the cooperating witness gave evidence at the 2012 armed robbery trial in accordance with his police statements, and the offender and his co-accused were acquitted of all robbery charges. The offender was later separately charged with the conspiracy offence.
Legal Issues
- What was the appropriate sentence for conspiring to pervert the course of justice, having regard to the objective seriousness of the offence?
- How should the offender's acquittal on the underlying armed robbery charges affect the assessment of the conspiracy's seriousness?
- How should the principles of parity apply, given sentences imposed on co-conspirators by a different judge?
- What weight should be given to pre-sentence custody, the principle of totality, and the offender's harsh conditions of imprisonment?
Decision
Berman SC DCJ characterised the conspiracy as a serious offence, noting that civilised society depends on the proper administration of justice. His Honour found that the object of the conspiracy was not merely to dissuade the witness from giving evidence, but to induce him to give evidence that the offender himself believed to be false, specifically to claim he had given the offender a BMW key to hold and to accept responsibility for the robberies. This elevated the seriousness of the conduct beyond cases where improper pressure is applied to prevent a witness from lying.
His Honour acknowledged that the offender's acquittal on the robbery charges was a relevant mitigating consideration. The District Court treated the offender as not guilty of those charges for all purposes, observing that the conspiracy would have been materially more serious had it been designed to secure an acquittal on charges where the offender was in fact guilty.
On parity, the court noted that co-conspirator LG had received three years imprisonment with a non-parole period of two years and three months, while Paul Geeves had received a suspended sentence of 18 months. His Honour identified significant differences in subjective circumstances and objective criminality between those cases and the present one, justifying a higher sentence for the offender as the directing mind behind the threats.
Taking into account the offender's significant criminal history, a difficult upbringing that included childhood sexual abuse, the absence of drug or alcohol problems, his harsh custodial conditions (23 hours per day in his cell), one year of pre-sentence custody referable to this offence, and the principle of totality with existing sentences, the court imposed a four-year head sentence with a three-year non-parole period, commencing 18 months before the expiry of the offender's existing non-parole period.
Orders Made
- The offender was sentenced to imprisonment with a non-parole period of three years and a head sentence of four years.
- The sentence commences 15 May 2028, with the non-parole period expiring 14 May 2031.
- The effect of the sentence is that the offender's minimum time in custody is increased by 18 months.
Key Takeaways
- Conspiring to pervert the course of justice is treated as more serious where the object is to induce a witness to give evidence the conspirator believes to be false, as distinct from pressure applied merely to prevent a witness from lying.
- An acquittal on related charges is a relevant sentencing consideration in a conspiracy to pervert the course of justice, because the gravity of such a conspiracy is heightened where the defendant was in fact guilty of the underlying offence it was designed to defeat.
- Parity principles apply across co-conspirators sentenced by different judges, but differences in subjective features and objective criminality can justify a materially higher sentence for the directing party.
- Pre-sentence custody served while bail was refused for the conspiracy offence (even concurrently with refusal for other charges) may be taken into account in fixing the commencement date of a sentence, even where the offender was ultimately acquitted of those other charges.
- Harsh custodial conditions, such as near-total cell confinement, are a recognised factor in calibrating the length of a sentence, although the court noted such conditions may partly reflect the offender's own conduct and are not guaranteed to persist.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or metadata. The court referred to the following principles by name:
- Principle of parity in sentencing co-offenders
- Principle of totality in cumulative sentencing
- General principles relating to pre-sentence custody and its treatment in New South Wales