Written by Andrew Fraser
August 25, 2016
A recent Court of Criminal Appeal decision in NSW reinforces yet again the value of rehabilitation in keeping people out of prison.
Successful rehabilitation was considered so important in this case that the appeal court decided not to send a man to prison, even though it had found that his offending warranted it – and that a District Court judge had been wrong not to imprison him.
“The sentence imposed by her Honour [in the District Court] was manifestly inadequate and a sentence of imprisonment should have been imposed,” the three-member appeal court found in the judgement of Justice Hoeben, the Chief Judge at Common Law.
But by the time the man was before the Court of Criminal Appeal his rehabilitation had progressed so far that the court allowed him to remain in the community.
The case involved a man who enthusiastically provided an alibi for another man facing charges of violence against a mother and daughter.
He was charged with doing an act with intent to pervert the course of justice – which carries a maximum sentence of 14 years.
The Court of Appeal said that the District Court judge had made “generous findings” when she accepted that the accused had felt pressured to give the alibi.
“Those findings … are difficult to reconcile with the content of the telephone intercepts which give an impression of the [accused man] being an enthusiastic participant in the offence to such an extent that he proffered a number of suggestions to give the story verisimilitude [the appearance of being true or real]. He appears to have composed the statement without any assistance.”
The District Court judge had also given the man a significant benefit for what she found to be his previous good character.
Justice Hoeben said, “This finding sits somewhat uneasily with the fact that the respondent had admitted that he had been in possession of ice [the drug] and had been using ice for a period of time before this offence occurred.”
The appeal court quoted the famous case of House v The King, which sets out the errors that allow appellate-court intervention.
Justice Hoeben wrote, “The House error was the failure by her Honour to properly take into account the objective seriousness so that the result produced was unreasonable and plainly unjust.
“In effect her Honour allowed the subjective case to overwhelm a proper assessment of the objective seriousness of the offending. The false statement would have provided a complete defence to the criminal charge of assault and intimidation of a mother and her child. The [accused man] continued in his support for [the other man] and was prepared to give the account in his statement as evidence in court.
“It follows that in this case the sentence imposed by her Honour was manifestly inadequate and a sentence of imprisonment should have been imposed. Absent other considerations, the Crown appeal should be allowed and the respondent should be resentenced so as to serve a term of imprisonment.
“There are, however, other considerations …”
These included that the offending took place almost two years earlier and the accused man gave evidence that he continued to attend drug and alcohol counselling sessions, which had been of considerable assistance in enabling him to remain drug free.
He had found the pending appeal very stressful. He would have liked to have started a landscaping business but could not do so as long as the appeal was pending.
He said his wife might not have him back were he to be sentenced to prison.
Judge Hoeben found that resentencing the man to a term of imprisonment would jeopardise his rehabilitation.
“It is most unlikely that he would receive the same support and treatment in prison as he is now receiving,” he wrote. “It should also not be ignored that the presence of his wife and children must be operating as a stabilising influence and as a motivation for him to continue with his rehabilitation, remain drug free and comply with his medication.
“In those circumstances, I am not persuaded that the Crown has met the onus required of it to satisfy the Court that it should intervene and resentence … to a custodial penalty.
“Accordingly, although the Crown has established manifest inadequacy in the sentence imposed by her Honour, this Court should not intervene and resentence the respondent.”
Sentencing in criminal matters, especially those where drug use is a factor, can be difficult matters. If facing such a charge, you should consult a specialist criminal lawyer, such as those in the team at Armstrong Legal.