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7
Court of Criminal Appeal 3 April 2020

R v Pearce

[2020] NSWCCA 61

Public order & justice offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE ATTEMPT TO PERVERT COURSE OF JUSTICE OFFENDER SENTENCED ON AGREED FACTS WHETHER SENTENCE MANIFESTLY INADEQUATE APPEAL DISMISSED

Citation: R v Pearce [2020] NSWCCA 61
Court: NSW Court of Criminal Appeal
Date: 3 April 2020
Judge(s): Leeming JA; Rothman J; N Adams J

Background

The offender pleaded guilty in the District Court to one count of doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The offending involved the offender making a voluntary false statement to police in April 2017, designed to provide a complete alibi defence to a close friend who was under investigation for aggravated sexual assault. The friend had been accused by a young woman of non-consensual sexual intercourse at a house party in 2015.

Intercepted phone calls revealed that the offender had offered to lie for his friend on multiple occasions before making the statement, discussing the need to "get our stories straight" and declaring he would "lie through my teeth" if necessary. The sentencing judge imposed 18 months imprisonment to be served by way of an intensive correction order (a form of supervised community-based sentence), accompanied by 100 hours of community service.

The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate. Central to the Crown's appeal was a submission that the sentencing judge had erred by failing to find that the offender had instigated the scheme to give a false statement, a factor the Crown described as critical to the assessment of objective seriousness.

  • Whether the sentencing judge erred in declining to find that the offender instigated the false statement scheme, where that finding was said to follow implicitly from the agreed facts or had been implicitly conceded.
  • Whether the sentencing judge had failed to properly assess the objective seriousness of the offending.
  • Whether the sentencing judge had failed to have regard to the full extent of the offender's criminality.
  • Whether the resulting sentence was manifestly inadequate.

Decision

The Court dismissed all grounds of appeal. On the central question of instigation, the Court held that the Crown had not established beyond reasonable doubt that the offender was the instigator of the false statement scheme. The proposition that he had instigated the conduct was absent from the agreed statement of facts, was never put to the offender in cross-examination, and it was undisputed that conversations about the allegations had occurred before the first intercepted call. Even where an inference of instigation might readily flow from the agreed facts, that is not sufficient to sentence an offender on that basis if the allegation has not been properly established.

The Court was candid that, absent the instigation finding, the sentence would have been manifestly inadequate in ordinary circumstances. Providing a false statement to police with intent to pervert the course of justice is a serious offence carrying a maximum of 14 years imprisonment, and the Court reiterated its earlier observations that such conduct "strikes at the very heart of the justice system." Much conduct falling within this offence warrants full-time custody.

However, the offender's subjective circumstances were described as "exceptionally strong" and, on the Court's assessment, truly extraordinary. References documented the offender, as a teenager, rescuing an unconscious child from a river; his extensive community service in later years included volunteer work in Cambodia, fundraising for hospitals, and leadership roles in outdoors and scouting organisations. The Court found that specific deterrence had little role to play, though it emphasised the continued importance of general deterrence for this category of offending.

The Court was ultimately not satisfied that the Crown had demonstrated the sentence was manifestly inadequate, and noted the residual discretion did not need to be considered given no grounds of appeal were made out.

Orders Made

  • The Crown's appeal against sentence was dismissed.

Key Takeaways

  • A sentencing court cannot sentence an offender on the basis of an aggravating factual allegation (here, that the offender instigated the false statement scheme) unless that allegation has been established beyond reasonable doubt, formally pleaded in the agreed facts, or put to the offender during proceedings. An inference that could readily flow from agreed facts is not sufficient.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that offences of attempting to pervert the course of justice by providing false statements to police are serious and commonly warrant full-time custodial sentences, even where the offender acted out of loyalty to a friend or family member.
  • The Crown's concession that instigation "was a critical issue" in establishing mid-range objective seriousness effectively undermined the manifest inadequacy ground once the instigator finding was rejected.
  • Exceptional subjective circumstances, demonstrated through detailed and credible character evidence, can displace what would otherwise be a custodial outcome, though the Court stressed such cases are rare.
  • General deterrence remains a significant sentencing consideration for perverting the course of justice offences, particularly where the underlying conduct involves sexual offences that often turn on one person's word against another's.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 17D(4), 89(4)
- Criminal Appeal Act 1912 (NSW), s 5D
- Evidence Act 1995 (NSW), s 4(2)

Cases:
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Carroll v The Queen [2009] HCA 13
- Casella v R [2019] NSWCCA 201
- Cowling v R [2015] NSWCCA 213
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Einfeld v R [2010] NSWCCA 87
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Khoury v R [2011] NSWCCA 118
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v AB [2017] NSWCCA 88
- R v Harris [2015] NSWCCA 81
- R v Kennedy [2019] NSWCCA 242
- R v Khoury [2018] NSWCCA 223
- R v Reid [2016] NSWCCA 151
- Voronov v R [2017] NSWCCA 241