Reported Decision: 171 A Crim R 575 New South Wales Court of Criminal Appeal CITATION: Warby v Regina [2007] NSWCCA 173 HEARING DATE(S): 24 May 2007 JUDGMENT DATE: 21 June 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Smart AJ at 33 DECISION: (1) Leave to appeal granted; (2) Appeal upheld; (3) The sentence is quashed and in lieu thereof the applicant is sentenced to imprisonment for a non parole period of 12 months commencing on 18 August 2006 and expiring on 17 August 2007 with a balance of term of 4 months commencing on 18 August 2007. The Court directs the release of the applicant on parole at the end of the parole period on 17 August 2007. CATCHWORDS: Criminal law - Sentencing - Influencing witness - Circumstances of aggravation - Available maximum sentence. LEGISLATION CITED: Crimes Act 1900 - ss 4(1), 117, 323, 324, 327, 328 Criminal Procedure Act 1986 - s 260 Kingswell v The Queen (1985) 159 CLR 264 CASES CITED: MacKenzie v The Queen (1996) 190 CLR 348 R v Lee (1994) 76 A Crim R 271 PARTIES: Applicant - Kevin William Warby Respondent - Regina FILE NUMBER(S): CCA 2007/585 COUNSEL: Applicant - Mr A. Cook Respondent - Ms J. Dwyer SOLICITORS: Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0392 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 18 August 2006 - 1 - IN THE COURT OF CRIMINAL APPEAL 2007/585 McCLELLAN CJ at CL HISLOP J SMART AJ 21 June 2007 Kevin William WARBY v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HISLOP J: On 7 August 2006 the applicant pleaded guilty to an indictment in the following terms: On 7th August 2006 the Director of Public Prosecutions on behalf of her Majesty charges that Kevin William Warby: (1) On 9 March 2005 at Tamworth in the State of New South Wales did an act with intent to persuade [R], a person to be called as a witness in a judicial proceeding, to give false evidence in that judicial proceeding. The indictment contained no reference to the section (s) relied upon by the Crown. The back sheet described the document as: Indictment for commit act with intent to persuade a witness to be called in a judicial proceeding to give false evidence (1) Law Part Code 16766 3 On 18 August 2006 the applicant was sentenced in the District Court, consequent upon that plea of guilty, to imprisonment for a non parole period of 18 months to date from 18 August 2006 with a balance of term of 6 months. 4 The relevant facts, which were agreed, may be shortly stated as follows: (a) On 17 September 2004 the applicant was arrested and charged with two counts of larceny to which he entered pleas of not guilty. During the investigation the police obtained a statement from R who was then aged 16. That statement was served as part of the brief of evidence. On 4 March 2005 R was served with a subpoena to give evidence at the summary hearing of the larceny charges on 18 March 2005. (b) On 9 March 2005 the applicant telephoned R and said "I'll come around, I want to talk to you about court". About 15 minutes later the applicant arrived at her house. He started to talk to her about his Court matter. He said among other things "Just tell the cop I wasn't involved. Jamie and Glen done it. Tell them I didn't get out of the car at Chantelle's or at the truck". He later said "When you go to court and get in the witness box just tell them I wasn't involved". R said "I'm not going to lie for you" and the applicant said "Just say this, that I didn't do it". (c) R felt scared and uneasy as a result of this conversation and on 12 March 2005 she informed the police about it. (d) On 17 March 2005 the applicant attended the police station and was advised of the allegation made by R. He declined to be interviewed. He was then charged. (e) On 18 March 2005 the applicant entered pleas of guilty to the larceny charges. The matters were dealt with summarily in the Local Court and the applicant was placed on a 3 year good behaviour bond. 5 The applicant has sought leave to appeal against his sentence in the District Court on the following grounds: (1) The applicant was sentenced for an aggravated form of the offence although he had pleaded guilty to the non aggravated form; (2) The sentence imposed is manifestly excessive. Ground 1 - The applicant was sentenced for an aggravated form of the offence although he had pleaded guilty to the non aggravated form. 6 The Crimes Act 1900 provides: 323 Influencing witnesses and jurors A person who does any act: (a) intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce any thing in evidence pursuant to a summons or subpoena, or (b)… is liable to imprisonment for 7 years. 324 Increased penalty if serious indictable offence involved A person who commits an offence against section 321, 322 or 323 (offences concerning interference with witnesses, jurors, judicial officers and public justice officials) intending to procure the conviction or acquittal of any person of any serious indictable offence is liable to imprisonment for 14 years. 7 A serious indictable offence is defined as: Means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more (Crimes Act 1900 Section 4(1)). 8 The Crimes Act section 117 provides: Whosoever commits larceny … shall, except in the cases herein after otherwise provided for, be liable to imprisonment for five years. 9 Prima facie the larceny offences each constituted a "serious indictable offence." Neither party to the appeal contended they should be otherwise categorised. In the result it is unnecessary for the Court to consider the impact, if any, of the larceny offences being dealt with pursuant to the Criminal Procedure Act 1986 in the Local Court where the maximum penalty is 2 years imprisonment. 10 In sentencing the applicant the sentencing Judge observed: The maximum penalty available for this offence, by virtue of the operation of s 324 Crimes Act, because the judicial proceedings related to two counts of larceny with which Mr Warby had been charged, is fourteen years imprisonment, because larceny is defined by virtue of its penalty as a "serious indictable offence". 11 The initial issue was whether, by his plea of guilty, the applicant rendered himself liable to a maximum sentence of imprisonment of 7 years as he contended, or 14 years as the respondent contended. 12 Counsel for the applicant submitted: (a) The charge set out in the indictment was, in terms, a charge pursuant to the Crimes Act s 323(a). That was the charge to which the applicant had pleaded guilty. The maximum penalty to which the applicant was exposed by the plea was therefore 7 years imprisonment; (b) The Crimes Act s 324 created a separate and distinct offence to that created by s 323(a). It was qualitatively different as it required proof of additional matters namely that the proceedings were criminal (rather than "any judicial proceeding"), and that the offence was committed with the intention of procuring the conviction or acquittal of any person of any serious indictable offence. If section 324 was to be relied upon it must be separately charged in the indictment. It had not been. Accordingly her Honour had erred in sentencing the applicant pursuant to s 324 and the sentence should be quashed; (c) A qualitatively different provision, such as s 324, was to be distinguished from a quantitatively different provision such as where a higher penalty was provided by reason that e.g. a greater quantity of drugs was involved; (d) If, contrary to his submission, s 324 was quantitatively rather than qualitatively different to s 323 then the failure to charge the circumstances of aggravation in the indictment resulted in a miscarriage of justice as a result of which the sentence should be quashed. 13 The respondent submitted: (a) The offence was created by the Crimes Act s 323(a) and the circumstances of the offence dictated the penalty. Section 324 did not create an offence separate to s 323. The agreed facts established the added requirements of s 324. The applicant was liable to the maximum penalty provided for by s 324. (b) There had been no miscarriage of justice. The applicant at all times understood the respondent relied upon s 324 as: (i) A notice of committal for trial dated 5 December 2005 described the offence as: "Do act with intent to influence witness. Crimes Act 1900 , s 323(A) – SI / 324". (However it does not appear that a copy of this document was forwarded to the applicant. There is otherwise no evidence as to what occurred at the committal. In particular there is not evidence whether an election was made pursuant to section 260 Criminal Procedure Act 1986.) ii) A letter from the DPP to the applicant's solicitors dated 21 July 2006 enclosed "indictment presently intended to be presented against your client". That indictment was in the same terms as that presented on 7 August 2006 save that it had an additional endorsement on the back sheet "Act 40 of 1900 s 323 / 324". (iii) On 3 August 2006 the applicant's legal representatives notified the DPP that there would be a plea of guilty. The terms of that notification are not before the Court. (iv) The transcript of the sentencing hearing relevantly states: [Applicant's counsel]: Your Honour, the offence to which your Honour is called upon to sentence Mr Warby, is one that carries a maximum penalty of seven years – I'm sorry your Honour I might be wrong about that. [Crown]: I thought it was fourteen your Honour, I'll just check. Her Honour: It's fourteen if the offence was a serious indictable offence that the Act related to but I thought he was charged with a larceny which he's not - anyway, I'll let you check that. … [Crown]: Your Honour, larceny under s 117 carries a maximum penalty of five years. A serious indictable offence is defined as an offence punishable by imprisonment for life or for a term of five years or more. Her Honour: OK, so it is. [Crown]: So in this case it's the serious indictable offence that we're dealing with. Her Honour: So the maximum penalty is fourteen years? [Crown]: Yes your Honour. [Applicant's Counsel]: I'll withdraw that submission your Honour. (v) The Law Part Code 16766 endorsed on the back sheet of the indictment was a reference to s 324. The facts clearly brought the matter within s 324. (c) The appeal, if leave is granted, should be dismissed. Discussion 14 A distinction is drawn in the authorities (see e.g. Kingswell v The Queen (1985) 159 CLR 264 at 280 per Gibbs CJ, Wilson and Dawson JJ and R v Lee (1994) 76 A Crim R 271 per Gleeson CJ (Powell JA and Smart J agreeing)) between cases where the existence of circumstances of aggravation converts a lesser offence into a greater offence and cases where the existence of circumstances of aggravation does no more than increase the maximum available penalty without altering the nature of the charge. 15 In cases of the first kind the circumstances of aggravation become elements of a distinct offence and must be specifically alleged in the indictment (Kingswell at 280). 16 In cases of the second kind there is a rule of practice that the circumstances of aggravation which affect the maximum penalty for which an accused person is liable should be charged in the indictment – Lee at 289. A failure to comply with the rule of practice does not necessarily mean a sentence imposed upon the basis the increased penalty was available must be quashed. The question is whether there has occurred a miscarriage of justice and only if that question is answered in the affirmative should the sentence be set aside – Lee at 289. 17 As Smart J observed in Lee at 290: It is important that the allegation that there are circumstances of aggravation be included in the indictment and the jury's verdict be taken on that point. An accused is only bound to meet the case charged. For the future I would look with disfavour on attempts by the Crown on sentencing to rely on circumstances of aggravation which have not been included in the indictment. 18 In my opinion the additional matters required to be proved by s 324 constitute elements of a distinct and greater offence which must be specifically alleged in the indictment. Sections 323 and 324 are similar in substance to Crimes Act ss 327 and 328 which create separate offences – MacKenzie v The Queen (1996) 190 CLR 348 at 361. 19 The only offence charged in the indictment was an offence under the Crimes Act s 323(a). It was that offence to which the applicant entered his plea. He was however sentenced on the basis he had pleaded guilty to the offence created by s 324. In my opinion this constituted an error on the part of the sentencing Judge which requires the intervention of the Court. 20 I observe, that had the circumstances of aggravation merely increased the maximum available penalty, I would have upheld the appeal by reason of the respondent's failure to comply with the rule of practice. It was apparent from the exchange during the sentencing hearing that, at the time of the plea, it was probable the applicant believed he was pleading to an offence the maximum penalty for which was 7 years imprisonment. In my opinion to sentence the applicant on the basis he was liable to a maximum penalty of 14 years imprisonment in those circumstances would give rise to a miscarriage of justice. Had I so found it would have been necessary to refer the matter back the District Court for determination as it is not apparent the respondent would accept a plea of guilty on the basis the maximum penalty was 7 years imprisonment. Ground 2: The sentence imposed is manifestly excessive. 21 The applicant is a single man born on 7 April 1976. He resides with his mother in "a mutually supportive relationship". He had a difficult upbringing as his father was an alcoholic who tended to criticise and verbally abuse him rather than encourage him as he was growing up. 22 The applicant has a criminal history of assault, indecent assault, sexual assault and drink driving as well as the larceny matters He has no offences similar to that the subject of this application. The subject offence was committed whilst he was on two good behaviour bonds. 23 Mr Nolan, a psychologist, reported that the applicant did not have a mental disability or disorder nor did he meet the strict requirements for a diagnosis of having a mild intellectual disability, however he was very much borderline between a mild intellectual disability and functioning at the very low normal range. In Mr Nolan's opinion the applicant understood the consequences of his actions after the event but with a lack of insight. He tended to act impulsively and respond to the people and circumstances around him at the time. 24 The applicant had recently been employed as a casual driver and labourer for 3 months by a scrap metal company. The director of that company was impressed by the applicant and confirmed in a reference tendered to the Court the good impression the applicant had made upon her and that he had been confirmed as a full time employee. 25 As Her Honour observed, the essence of the offence was that it strikes at the integrity of the system of justice, and some form of custodial sentence is normally appropriate. 26 Her Honour accepted the submission made both by the Crown and by the applicant's counsel that the offence could be assessed as at the lower end of the spectrum of objective gravity of these kinds of offences as it was a verbal attempt to persuade R and distinguishable from situations where a threat was made or where there was some physical force or threat with a weapon to attempt to deter a witness. 27 Her Honour, after a careful consideration of sentencing options, concluded there was no alternative other than a custodial sentence. In sentencing the applicant she took his level of intellectual functioning into account by reducing the head sentence which she considered initially appropriate for the offence. She also allowed a discount for the late plea of guilty at about 10 percent. 28 The applicant submits the sentence was manifestly excessive even if the maximum penalty was correctly regarded as being 14 years imprisonment as: (1) The offence was accepted to be "at the lower end of the spectrum" on a plea of guilty; (2) The sentencing Judge appeared to have overlooked that the overtures by the applicant towards the prospective witness were contained in one conversation on a single day; (3) The overture may properly be regarded as a somewhat casual request and not as part of a campaign of importuning or persuasion for the matters with which the applicant was charged were disposed of summarily and he received good behaviour bonds in respect thereof. 29 The respondent submitted that the sentence imposed was within the exercise of sound sentencing discretion. Her Honour had taken into account the relevant considerations both objective and subjective. It was necessary to emphasise in offences of this nature the need for general deterrence. 30 As error has been found in relation to the first ground it is unnecessary to consider this ground separately. 31 Having regard to the matters which were taken into account by her Honour, the matters raised by the applicant in paragraph [28] above and the maximum penalty for the offence to which the applicant pleaded guilty I consider that the appropriate penalty is imprisonment for 12 months with an additional term of 4 months. 32 Accordingly I propose the following orders: (1) Leave to appeal granted; (2) Appeal upheld; (3) The sentence is quashed and in lieu thereof the applicant is sentenced to imprisonment for a non parole period of 12 months commencing on 18 August 2006 and expiring on 17 August 2007 with a balance of term of 4 months commencing on 18 August 2007. The Court directs the release of the applicant on parole at the end of the parole period on 17 August 2007. 33 SMART AJ: I agree with Hislop J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.