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District Court 9 December 2022

R v Challis

[2022] NSWDC 617

Public order & justice offences
FOURTEEN YEAR DELAY IN SENTENCING.

Citation: R v Challis [2022] NSWDC 617
Court: District Court of New South Wales
Date: 9 December 2022
Judge: Mahony SC DCJ

Background

The offender pleaded guilty to a charge of doing an act intending to pervert the course of justice, contrary to s 319 of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment, with no standard non-parole period prescribed.

The offending occurred in mid-2008. The offender was facing a Local Court charge of goods in custody relating to a stolen pushbike. He arranged for his then-partner (later wife) to attend a conference with his Legal Aid lawyer and pose under a false name, signing an affidavit falsely claiming she had given him the bike as a birthday gift. She subsequently gave false evidence at the hearing on 23 June 2008, and the magistrate dismissed the charge, expressly referring to her evidence in his reasons.

The sentence hearing took place on 6 March 2020, but the offender failed to appear on the adjourned sentence date and a warrant was issued. He was not arrested until 28 November 2022, meaning sentence was ultimately delivered more than 14 years after the offending. Two further charges, failure to appear on bail and wilfully obstructing police, were dealt with on a s 166 certificate under the Criminal Procedure Act 1986.

  • What weight should be given to the very substantial delay of approximately 14 years between the offending and sentencing?
  • How did the offender's personal circumstances, including a mild intellectual disability, ADHD, and difficult background, bear on the appropriate sentence?
  • What principle of parity applied, given that the co-offender (the wife who gave the false evidence) had already been sentenced?
  • Whether an Intensive Correction Order (ICO) was appropriate in lieu of full-time custody, given the reduced significance of general deterrence and denunciation in the circumstances.

Decision

The court found the offending to be serious. The offender had orchestrated the false evidence scheme, introduced his partner to his lawyer under a false name, sat through the hearing while she gave false testimony on his behalf, and directly benefited from the resulting dismissal of the charge. The gravity of the conduct was not in doubt.

However, Mahony SC DCJ gave considerable weight to the extraordinary delay in sentencing. The offence occurred in 2008 and sentencing did not occur until December 2022. While the offender was responsible for part of that delay through his failure to appear, the court treated the overall passage of time as a significant mitigating factor. The delay reduced the importance of general deterrence and denunciation as sentencing objectives. The court also noted the offender's mild intellectual disability, troubled upbringing, long history of substance abuse, and some evidence of stabilisation in his lifestyle in Victoria through disability support services.

On parity, the court considered the sentence already imposed on the co-offender. The co-offender had given the false evidence directly; the offender had orchestrated the scheme. The court treated the offender as bearing somewhat greater moral culpability, while still applying the parity principle to ensure consistency.

Balancing these factors, including the guilty plea, the personal circumstances, the substantial delay, and the reduced weight properly given to general deterrence and denunciation, the court concluded that an ICO was appropriate. The court was satisfied that community safety concerns could be addressed through the conditions attached to such an order.

Orders Made

  • The offender was convicted of doing an act intending to pervert the course of justice (s 319, Crimes Act 1900) and sentenced to 18 months imprisonment, to be served by way of an Intensive Correction Order commencing 9 December 2022.
  • Standard ICO conditions applied: no offences to be committed; submission to supervision by Community Corrections officers.
  • Additional conditions: participation in rehabilitation programs or treatment as directed; residence with the offender's mother or as approved; no departure from the jurisdiction without approval.
  • Failure to comply may result in formal warning, more stringent conditions, or revocation of the order; revocation may require the balance of the sentence to be served in full-time custody.
  • In respect of the two charges on the s 166 certificate (failure to appear, and wilfully obstructing police), the offender was convicted of each charge pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed.

Key Takeaways

  • A delay of approximately 14 years between offending and sentencing was treated by the District Court as a significant mitigating factor, reducing the weight properly given to general deterrence and denunciation, even where the offender bore some responsibility for that delay.
  • Orchestrating a false evidence scheme, including introducing a witness under a false name and arranging for a fabricated affidavit, constitutes a serious perversion of the course of justice, regardless of the relatively minor nature of the underlying charge being defended.
  • Where a co-offender has already been sentenced for related conduct, the parity principle requires the sentencing court to consider consistency; differences in culpability between participants may justify some variation in outcome.
  • An Intensive Correction Order remained available as a sentencing option even for an offence of this seriousness, where the combination of delay, personal circumstances, and reduced weight for general deterrence collectively justified a non-custodial form of imprisonment.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a charge dealt with on a certificate under s 166 of the Criminal Procedure Act 1986 without imposing any additional penalty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 9, 10A
- Criminal Procedure Act 1986 (NSW), s 166
- Bail Act 1978 (NSW), s 51(1)
- Disability Act 2006 (Vic)

Cases
- Blanco v R (1999) 106 A Crim R 303; [1999] NSWCCA 121
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Fangaloka [2019] NSWCCA 173
- R v Mahoney [2004] NSWCCA 138
- R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264
- R v Todd [1982] NSWLR 517
- Taylor v R [2007] NSWCCA 99
- Veen v R (No. 2) (1988) 164 CLR 465; [1988] HCA 14