Regina v Treglia [2002] NSWCCA 338

New South Wales Court of Criminal Appeal

CITATION : Regina v Treglia [2002] NSWCCA 338 FILE NUMBER(S) : CCA 60189/02 HEARING DATE(S) : 12/8/02 JUDGMENT DATE : 21 August 2002

PARTIES : Crown Giovanni Johnny Treglia JUDGMENT OF : Hidden J at 1; Adams J at 17

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/1047 LOWER COURT JUDICIAL Hock DCJ OFFICER :

COUNSEL : DG Dalton - Applicant DC Frearson - Crown SOLICITORS : John B Hajje & Associates - Applicant SE O'Connor - Crown CATCHWORDS : CRIMINAL LAW: Application for leave to appeal against sentence - perjury - whether sentence manifestly excessive. Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Police Integrity Commission Act 1996 Haddad and Treglia (2000) 116 A Crim R 312 R v Bulliman (CCA, unreported, 25.2.93) CASES CITED: R v Simpson [2001] NSW CCA 534 R v Fish and Swan [2002] NSW CCA 196 R v Giang [2001] NSW CCA 276 R v Irwin [1999] NSW CCA 361 DECISION : See para 16.

IN THE COURT OF CRIMINAL APPEAL

60189/02

HIDDEN J ADAMS J

21 August, 2002 REGINA v Giovanni Johnny TREGLIA Judgment

1 HIDDEN J: The applicant, Giovanni Treglia, pleaded guilty in the District Court to a charge of perjury, an offence under s327 of the Crimes Act which carries a maximum sentence of imprisonment for ten years. He was sentenced to imprisonment for four years, to date from 7 November 2001, with a non-parole period of three years. He seeks leave to appeal against that sentence. 2 He had originally been charged with the aggravated offence under s328 of the Crimes Act of committing perjury with the intent to procure his acquittal of a serious indictable offence, carrying a maximum sentence of fourteen years. The prosecution of that charge led to a successful appeal by the Crown under s5F of the Criminal Appeal Act against the rejection of certain evidence obtained by the use of a listening device: see Haddad and Treglia (2000) 116 A Crim R 312. Subsequently, the Crown accepted his plea of guilty to the offence under s 327. The man Haddad was also charged with perjury but failed to appear and, apparently, has not been located. 3 The charge arises from evidence which the applicant gave in June 1995 at his trial, with Haddad, for three charges of armed robbery and two charges of assault. The two men were alleged to have been involved in a violent home invasion in November 1994. The applicant and Haddad gave evidence of an alibi, and called witnesses in support of it. Both were acquitted. It was only at that stage that investigating police became aware that a listening device had been installed in the applicant's cell in December 1994, and that it had recorded a conversation between him and Haddad in which both men acknowledged having been present at the home on the occasion in question. 4 The sentencing judge referred to the observations of Abadee J in R v Bulliman (CCA, unreported, 25.2.93) stressing the seriousness of giving false evidence and the need for deterrent sentences for those who do so. Whilst she was mindful of the fact that the applicant did not stand for sentence for an offence under s328, her Honour noted that the applicant's perjury was premeditated and that it was perpetrated in the course of the trial of serious criminal charges. Her Honour considered that the offence called for a sentence towards the maximum but felt constrained by the sentencing statistics produced by the Judicial Commission, to which I shall turn in a moment. Her Honour also took into account the fact that there had been considerable delay, not all of which could be attributed to the applicant, before he was arrested and brought to trial. 5 The applicant was twenty-one years old at the time of the offence and is now twenty-eight. He has a criminal record, which it is not necessary to analyse, and a pre-sentence report revealed that his response in the past to opportunities such as bonds and community service orders had been unsatisfactory. Nevertheless, that report noted that he was "immersed in the drug taking culture" at the time of the offence, but had "made significant changes to his lifestyle" in the years since and presented as a man who was "committed to gaining employment, to maintaining a drug free lifestyle and to attending psychological counselling to assist with long standing learning difficulties". The applicant gave evidence to the same effect and, while her Honour expressed some scepticism about that evidence, she accepted that he had made some progress towards his rehabilitation, assessing his prospects of further rehabilitation as "guarded". 6 Her Honour also noted that the applicant pleaded guilty to the offence under s327 as soon as the Crown indicated that it would be accepted, and on that account she reduced the sentence she would otherwise have passed by twenty percent. It follows that her Honour's starting point was a sentence of five years. Notwithstanding the subjective material to which I have referred, her Honour did not find special circumstances. 7 In this Court Mr Dalton, who appeared for the applicant, submitted that the sentence of four years is manifestly excessive and that her Honour erred in declining to find special circumstances. The latter is not an easy argument to sustain: R v Simpson [2001] NSW CCA 534, per Spigelman CJ at par 73. However, if the sentence is manifestly excessive it would be for this Court to re-sentence the applicant, and the question of special circumstances would be at large. 8 The Judicial Commission's statistics for sentences under s327 contain fifteen cases. Only five of those resulted in full-time custodial sentences, the highest of them being three years. 9 Bulliman was an appeal against concurrent sentences of twelve months imprisonment passed upon the applicant for two charges of making a false statement on oath, an offence under s330 of the Crimes Act which carries a maximum sentence of five years. The applicant had given false evidence in the course of proceedings brought by him for damages for personal injury. The appeal was dismissed, Abadee J (with whom Gleeson CJ and Hunt CJ at CL agreed) describing the effective sentence as "appropriate". 10 In R v Fish and Swan [2002] NSW CCA 196, the appellants had been found guilty after a trial of perjury under s327. Both were police officers. Fish was found guilty of one count of perjury, arising from false evidence she gave in a prosecution in the Local Court. Swan was found guilty of two counts, arising from his false evidence in the same Local Court proceedings and in a subsequent District Court appeal. Both were sentenced to twenty months imprisonment on each count, and in Swan's case the sentences were directed to be served consecutively. This Court intervened to the extent of reducing Fish's non-parole period in the light of some exceptional subjective material, and directing that Swan's sentences be partly, rather than wholly, cumulative. 11 By way of analogy, we were referred to two cases involving an attempt to pervert the course of justice, an offence under s319 of the Crimes Act which carries a maximum sentence of fourteen years imprisonment. In R v Giang [2001] NSW CCA 276, the applicant agreed to give false evidence for the defence in proceedings in the Local Court against another man for malicious wounding. His appeal against a sentence of fifteen months imprisonment was dismissed. The applicant had an insignificant criminal record and was able to make out a powerful subjective case. McClellan J (with whom Studdert J agreed) described the sentence as "undoubtedly at the top end of the available range". 12 R v Irwin [1999] NSW CCA 361 was a Crown appeal, in which the respondent was a Detective Sergeant of police. He had pleaded guilty to a charge of attempting to pervert the course of justice and a related charge of knowingly giving false evidence to the Police Integrity Commission, an offence under s107 of the Police Integrity Commission Act which carries a maximum sentence of five years imprisonment. In return for the payment of money, he had been involved in an attempt to suppress some evidence against a major drug dealer. He later gave false evidence about the matter in the course of an inquiry by the Police Integrity Commission. Concurrent sentences passed upon him in the District Court had resulted in an effective term of sixteen months imprisonment. The Crown appeal was allowed. On the charge of attempting to pervert the course of justice the respondent was sentenced to imprisonment for four years, comprising a minimum term of three years and an additional term of one year, and on the other count he was sentenced to a concurrent term of imprisonment for two years. 13 I am mindful of the differences between those cases and the present case. Fish and Swan is the only case dealing with exactly the same charge as that for which this applicant stood for sentence. The other offenders had little or no criminal record and were able to make out favourable subjective cases. On the other hand, in two of the cases the offenders were police officers whose crimes were exacerbated by the dereliction of their public duty. In Irwin, of course, the Court had regard to the element of double jeopardy in a Crown appeal. 14 Sentencing for the crime of perjury is a difficult exercise, for which there is little guidance from precedent. There are only a few decisions of this Court and the Judicial Commission's statistics are based upon a small sample. Nevertheless, an examination of the cases to which we have been referred, together with those statistics, persuade me that the sentence passed upon the present applicant is excessive and this Court's intervention is called for. This is not to deny that the applicant's perjury is a serious offence of its class. Nor is it to lose sight of the fact that the offence is one for which the legislature has prescribed a maximum sentence of ten years imprisonment. 15 In my view, the appropriate sentence, taking into account the applicant's plea of guilty, is imprisonment for three years. Not without some hesitation, I have also concluded that there are special circumstances, given the applicant's age and such progress as he has made towards rehabilitation in recent years. I consider that the appropriate non-parole period is eighteen months. 16 I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court and, in lieu, I would sentence the applicant to imprisonment for three years, to date from 7 November 2001, with a non-parole period of eighteen months. I would direct the applicant's release at the expiration of that non-parole period and that he be subject to the supervision and guidance of the Probation and Parole Service for the remainder of the sentence. 17 ADAMS J: I agree. **********