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Court of Criminal Appeal 12 June 2019

Hunt v R

[2019] NSWCCA 118

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL NEED TO RE SENTENCE NEED TO REDUCE AGGREGATE SENTENCE.

Citation: Hunt v R [2019] NSWCCA 118
Court: Court of Criminal Appeal, New South Wales
Date: 12 June 2019
Judges: Hoeben CJ at CL; R A Hulme J; Davies J

Background

The applicant had been sentenced in the District Court at Parramatta in December 2017 on three counts: perjury with intent to procure his own acquittal (Count 1), perjury in subsequent civil proceedings (Count 5), and threatening a witness to withhold evidence (Count 6). The sentencing judge imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 9 years.

The underlying facts involved a violent confrontation in 2007 at the home of a police officer. The applicant was charged with assaulting the officer and, at his criminal trial, fabricated an explanation for his presence at the property, claiming he had been searching for a lost dog. A jury acquitted him. He then repeated the false account in civil proceedings, enlisted witnesses to corroborate the lie, and, while on remand, threatened a family member to withhold evidence from police.

The applicant sought leave to appeal the sentence, arguing the sentencing judge had erred in assessing the objective seriousness of Count 1 and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge made a House v The King error by incorrectly assessing the objective seriousness of Count 1 (perjury with intent to procure acquittal).
  • Whether the aggregate sentence of 12 years was manifestly excessive, including in light of the applicant's physical and mental health.

Decision

On Ground 1, Hoeben CJ at CL was satisfied that the sentencing judge had erred in his assessment of the objective seriousness of Count 1, constituting a House v The King error (that is, a material error of principle that warrants appellate intervention in a discretionary sentencing decision). This finding enlivened the Court's power to resentence the applicant afresh.

On the question of health, the Court accepted that the applicant's physical problems met the established test for taking ill-health into account at sentencing: that imprisonment would impose a disproportionate burden, or that there was a serious risk of grave adverse effects on the applicant's health. Mental health alone, without more, was treated with greater caution, but the physical health findings were sufficient.

The Court considered comparable perjury cases but placed limited weight on them. Consistent with the approach in Vandeventer v R, the Court noted that the sample of perjury cases is small and highly fact-specific, and that comparative case analysis cannot by itself demonstrate that a sentence falls within or outside an appropriate range.

Having identified error and resentenced, the Court reduced the indicative sentence for Count 1 and imposed a new aggregate sentence of 8 years' imprisonment with a non-parole period of 6 years, commencing on the same date as the original sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Colefax SC on 11 December 2017 quashed.
  • In lieu thereof, the applicant sentenced to imprisonment for 8 years with a non-parole period of 6 years, commencing 7 February 2017, with the non-parole period expiring 6 February 2023 and the balance of term expiring 6 February 2025.

Key Takeaways

  • A House v The King error in assessing the objective seriousness of one count in an aggregate sentence is sufficient to enliven the Court of Criminal Appeal's power to resentence the offender entirely.
  • Ill-health at sentencing warrants a reduction where imprisonment imposes a disproportionate burden, or where there is a serious risk of grave adverse health consequences; physical health findings were accepted on those criteria in this case.
  • Comparative sentencing cases for perjury carry limited weight: the Court of Criminal Appeal confirmed that, because perjury cases are highly fact-specific, past decisions can only indicate historical sentencing practice rather than establish an applicable range.
  • Perjury committed to procure one's own acquittal on serious charges (Count 1, carrying a maximum of 14 years) attracted an indicative sentence of greater severity than perjury in subsequent civil proceedings (Count 5, carrying a maximum of 10 years), reflecting the differing statutory maxima and circumstances.
  • The aggregate sentence was reduced from 12 years (non-parole period 9 years) to 8 years (non-parole period 6 years), with the commencement date remaining 7 February 2017.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 322(a), 327(1), 328

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Vandeventer v R [2013] NSWCCA 33
- Cahyardi v Regina [2007] NSWCCA 1; 168 A Crim R 41
- Zreika v R [2012] NSWCCA 44
- R v Obeid (No 12) [2016] NSWSC 1815
- State of New South Wales v Hunt [2014] NSWCA 47