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Court of Criminal Appeal 4 August 2016

R v Reid

[2016] NSWCCA 151

Public order & justice offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE S 9 BOND IMPOSED WHETHER SENTENCE MANIFESTLY INADEQUATE STRONG SUBJECTIVE CASE SENTENCE MANIFESTLY INADEQUATE

Citation: R v Reid [2016] NSWCCA 151
Court: Court of Criminal Appeal of New South Wales
Date: 4 August 2016
Judge(s): Hoeben CJ at CL, R A Hulme J, N Adams J

Background

The respondent was a close associate of a man who faced assault and intimidation charges. Over several weeks in August and September 2014, police intercepted a series of telephone calls in which the respondent actively assisted that man in constructing a false alibi: he agreed to lie about the man's whereabouts, typed out a fabricated witness statement, sent photographs of his motorbike to make the alibi appear credible, and agreed to stage a recreation of the fictional events with his wife and children present.

The respondent was charged under s 319 of the Crimes Act 1900 (NSW) with doing an act with intent to pervert the course of justice, an offence carrying a maximum penalty of 14 years' imprisonment. He pleaded guilty and appeared for sentence in the District Court at Orange in March 2016.

The sentencing judge imposed a good behaviour bond of two years and six months under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Director of Public Prosecutions appealed that sentence to the Court of Criminal Appeal, contending it was manifestly inadequate.

  • Whether the sentencing judge erred by taking subjective factors (moral culpability) into account when assessing the objective seriousness of the offence.
  • Whether the sentencing judge erred in classifying the objective seriousness of the offence as falling in the low range.
  • Whether the sentence of a good behaviour bond was manifestly inadequate.
  • If error was established, whether the Court of Criminal Appeal should exercise its residual discretion to decline to resentence the respondent.

Decision

The Court of Criminal Appeal accepted that the sentencing judge had erred in two respects. First, her Honour had impermissibly conflated the respondent's subjective circumstances with the objective assessment of the offending. Second, assessed properly on its objective features, the offence was not in the low range: the respondent was an active and enthusiastic participant, not a passive one; he drafted the false statement, supplied corroborating photographs, and agreed to involve his family in staging a false recreation.

Despite finding those errors, and accepting that the resulting sentence was manifestly inadequate, the Court declined to intervene. The applicable principle is that even when manifest inadequacy is established, the appellate court retains a residual discretion to dismiss the Crown appeal where resentencing would produce an unjust outcome.

The Court found that the respondent's rehabilitation was the critical countervailing consideration. He had completed a drug rehabilitation program in September 2015, having suffered from an ice addiction at the time of the offending. He had remained drug free since, was receiving ongoing counselling through the Western NSW Local Health District, had reconnected with his long-term partner and eight children, and had resumed treatment for a depressive condition that dated from a 2002 workplace injury. The respondent had also given evidence in the sentence proceedings and presented a strong subjective case.

The Court concluded that a custodial sentence would place the respondent's ongoing rehabilitation in serious jeopardy. Prison was unlikely to provide the same support, treatment, and stabilising family environment that was sustaining his recovery. On those facts, the Crown had not discharged the onus of persuading the Court to intervene.

Orders Made

  • The Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that subjective considerations, including an offender's moral culpability, are not properly taken into account when assessing the objective seriousness of an offence; those are distinct steps in the sentencing process.
  • An offender who actively and enthusiastically participates in constructing a false alibi, including drafting documents and providing supporting evidence, cannot have that offending classified as falling in the low range of objective seriousness for perverting the course of justice.
  • In dismissing the Crown appeal, the Court reaffirmed that establishing manifest inadequacy does not automatically lead to resentencing; a residual discretion exists to decline intervention where the justice of the case demands it.
  • Where a respondent has undergone genuine and fragile rehabilitation from drug addiction and mental illness, and where a custodial sentence would likely disrupt that rehabilitation, the Court may exercise its residual discretion against resentencing even after error is established.
  • The quality of the subjective case at sentence, including evidence of completed rehabilitation programs, stable family support, and ongoing treatment, can carry decisive weight when the Court weighs whether to exercise residual discretion on a Crown appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 9, 21A(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407
- Khoury v R [2011] NSWCCA 118
- Marinellis v Regina [2006] NSWCCA 307
- R v Fahda [2013] NSWCCA 86
- Regina v Giang [2001] NSWCCA 276