GREALISH, Peter v R [2013] NSWCCA 336

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: GREALISH, Peter v R [2013] NSWCCA 336 Hearing dates: 6 December 2013 Decision date: 20 December 2013 Before: Leeming JA at [1]; Adams J at [2]; Hall J at [3] Decision: (1) Leave to appeal granted. (2) Appeal upheld. (3) The sentence imposed by the District Court on 26 April 2013 be quashed. (4) The offender be re-sentenced as follows: (i) In relation to the offence committed by the offender pursuant to s 178BB(1) of the Crimes Act 1900 on or about 6 December 2006, pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999, order that the offender enter into a good behaviour bond for a period of 18 months to commence on 26 April 2013 and to expire on 25 October 2014. (ii) In respect of the three offences committed by the offender pursuant to s 178BB(1) of the Crimes Act 1900 on or about 29 January 2007, 20 July 2007 and 20 November 2007, an aggregate sentence of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 3 months to commence on 26 April 2013 and to expire on 25 July 2013. (iii) In respect of the offence under s 107 Police Integrity Commission Act 1996, a term of imprisonment comprising a non-parole period of 8 months to commence on 26 May 2013 and to expire on 25 January 2014 with a balance of term of 10 months to expire on 25 November 2014. The earliest date upon which the offender will be eligible for parole will be on 25 January 2014. Catchwords: CRIMINAL LAW - sentence appeal - four counts of obtain financial advantage by false and misleading statement pursuant to s 178BB(1) of the Crimes Act 1900 - one count of giving false evidence to the Police Integrity Commission pursuant to s 107(1) of the Police Integrity Commission Act 1996 - aggregate sentence of 2 years with non-parole period of 1 year imposed - alleged failure by sentencing judge to consider whether sentence other than full-time custody would be appropriate - full-time custody was only sentencing option open to sentencing judge in relation to s 107(1) offence given its seriousness - no requirement for sentencing judge to have expressly addressed the issue of alternatives to a full-time custodial sentence in sentencing for s 107(1) offence together with other offences - alleged error by sentencing judge in finding objective criminality of s 178BB(1) offences was aggravated by the applicant's position as an officer of the Supreme Court as a liquidator - alleged that indicative sentences in respect of the s 178BB(1) offences were manifestly excessive thereby infecting the aggregate sentence imposed with error - objective seriousness and applicant's favourable subjective circumstances in relation to first s 178BB(1) offence committed could not justify the full-time custodial sentence of 9 months indicated - indicative sentence of 9 months' imprisonment for each s 178BB(1) offence manifestly excessive given circumstances of offending and applicant's subjective circumstances - although error established by reason of sentencing judge's findings, no lesser sentence for s 107(1) offence is warranted than that indicated - sentencing judge in error in finding there was a greater obligation on the applicant to not give false sworn evidence than on another offender in a related case (the latter being a police officer) sentenced by another judge for a s 107 offence - despite error, no lesser sentence for s 107(1) offence is warranted than that indicated - applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Police Integrity Commission Act 1996 Cases Cited: R v Irwan [1999] NSWCCA 361 R v Einfeld [2009] NSWSC 119 Einfeld v R [2010] NSWCCA 87 R v Bulliman (NSWCCA, 25 February 1993, unreported) R v Aristomenou (NSWCCA, 30 June 1994, unreported) Category: Principal judgment Parties: Peter Grealish (Applicant) Regina (Crown) Representation: Counsel: D Stewart; (Applicant) J Girdham SC (Crown) Solicitors: Shiranica Danieli Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/209082 Decision under appeal Date of Decision: 2013-04-26 00:00:00 Before: Solomon DCJ File Number(s): 2010/209082