Citation: R v Purtell, Garry Michael [2001] NSWCCA 21 (revised 20 March 2001); reported at 120 A Crim R 317
Court: Court of Criminal Appeal (NSW)
Date: 30 January 2001
Judge(s): Giles JA, Hulme J, Bell J
Background
The respondent had been found guilty in the Local Court of assaulting his former de facto partner and causing malicious damage to her property. At the sentencing hearing, his legal representative tendered three character references, including one purportedly from his former wife. That letter described sixteen years of happy marriage and portrayed the respondent as a kind and gentle man. The magistrate imposed a fine and ordered payment of costs, a relatively lenient outcome.
The letter was a forgery. It had been written by the respondent's then-partner, and the respondent acknowledged they "worked it out together." When the deception came to light, both were charged with perverting the course of justice under s 319 of the Crimes Act 1900.
The respondent pleaded guilty in the District Court. Judge Gibson, exercising the power under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, discharged the respondent without proceeding to conviction, on the condition that he enter into a two-year good behaviour bond. The Director of Public Prosecutions appealed that outcome as manifestly inadequate.
Legal Issues
- Whether the sentencing judge misapprehended the significance of the forged letter to the original Local Court sentencing.
- Whether it is correct that perverting the course of justice in relation to penalty is necessarily less serious than doing so in relation to guilt or innocence.
- Whether the outcome of a discharge without conviction under s 10 was manifestly inadequate for the offence.
- What orders the Court of Criminal Appeal should make on a Crown appeal, given the Crown's own position at first instance.
Decision
The Court of Criminal Appeal upheld both grounds of Crown appeal. On the first ground, Giles JA found that Judge Gibson had understated the significance of the forged letter. The reference did not merely duplicate evidence of general good character available by other means. It purported to come from the respondent's former wife, someone uniquely placed to speak to his domestic conduct, and was therefore capable of presenting the assault as wholly out of character.
On the second ground, the Court rejected the proposition that producing a false document at the sentencing stage is inherently less serious than doing so at the guilt stage. The integrity of the sentencing process demands the same honesty as the trial itself, and a deliberate attempt to manipulate a sentencing outcome is not of a low order of seriousness. The Court noted that the offence carries a maximum of fourteen years' imprisonment and has been described as striking at the heart of the judicial system.
The Court found that Judge Gibson's sentencing discretion had miscarried. The discharge without conviction failed to reflect the seriousness of the offence or the importance of deterrence. However, the Court was constrained in the remedy it imposed. The Crown had not sought a custodial sentence at first instance and did not seek one on appeal. Hulme J observed candidly that neither the original order nor the Crown's initial position adequately deprived the respondent of the benefit he obtained through his dishonest conduct, but accepted that it was not appropriate to go beyond what the Crown had asked for on appeal.
The Court set aside the discharge without conviction and substituted a formal conviction, while maintaining the two-year good behaviour bond and the condition prohibiting contact with the former wife. Giles JA noted that recording the conviction was the minimum appropriate step to mark the seriousness of the offence, without going further than the appeal required.
Orders Made
- Crown appeal allowed.
- Order discharging the respondent without conviction set aside.
- In lieu thereof, the respondent convicted of perverting the course of justice.
- Respondent ordered to enter into a good behaviour bond for two years, on conditions that he: be of good behaviour; appear before the Court if called upon during the bond period; inform the Registrar of any change in residential address; and make no contact with the former wife, either directly or indirectly.
Key Takeaways
- Perverting the course of justice at the sentencing stage is not necessarily less serious than doing so at the guilt stage. The Court of Criminal Appeal confirmed that the integrity of the sentencing process warrants the same protection as the trial process itself.
- A forged character reference carries particular weight where it purports to come from someone with direct, personal knowledge of the defendant's conduct relevant to the offence charged, rather than simply attesting to general community standing.
- Under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, a discharge without conviction is available but must reflect the objective seriousness of the offending. Its use for an offence that strikes at the heart of the judicial system requires careful justification.
- Deterrence is a significant sentencing consideration for perverting the course of justice, an offence carrying a maximum of fourteen years' imprisonment.
- On a Crown appeal, the Court of Criminal Appeal may decline to impose a more severe sentence than the Crown itself sought, even where individual judges consider the ultimate outcome inadequate.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 319 (doing an act with intent to pervert the course of justice)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b) (discharge without conviction)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence)
Cases
- R v Hakim, Court of Criminal Appeal, 5 September 1996 (unreported)
- R v Taouk (1992) 65 A Crim R 387