Jersey Unreported Judgments

Inferior Number Sentencing - perverting the course of justice - perjury.

[2012]JRC234

Royal Court

(Samedi)

14 December 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Olsen.

The Attorney General

-v-

J

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

1 count of:	Perverting the course of justice (Count 1).
1 count of:	Perjury (Count 2).

Age:  55.

Plea: Guilty.

Details of Offence:

Count 1

The police were investigating complaints made against U in relation to allegations of serious sexual offending concerning a named child and the defendant was warned of the existence of the investigation and expressly told not to tell U of the police investigation.  Despite assuring the police that she would not do so, she in fact did so.  She tipped him off.  This allowed him to attempt to destroy evidence contained on his computer. 

Count 2

J gave evidence in support of U's alibi that it was not him attempting to delete incriminating material from his computer.  She maintained her support/evidence, even though by the time of the trial she was aware that U had been convicted of serious sexual offences on a child.  U's alibi and therefor J's evidence was shown to be false following the examination of a satellite navigation device taken from U's vehicle. 

The Crown's position at sentencing was that both offences were serious offences, and that from an analysis of the relevant authorities a custodial sentence was inevitable.  The Crown could not identify any exceptional circumstances justifying a departure from a custodial sentence.  Whilst J may have acted out of a misguided sense of loyalty or obligation, such a matter was not exceptional.  In assessing the proper custodial sentence, the Crown had regard to the nature and the extent of the criminality of the offender for whom assistance was provided, the nature and extent of the assistance actually provided and the extent to which such efforts damaged the interests of justice. 

The Crown also has regard to the offences committed, the timescale over which they were committed, whether the offences were planned or spontaneous, whether the lies were persisted in, and the impact that those lies actually had on the proceedings. 

Details of Mitigation:

The Crown

Guilty pleas were entered before Indictment, these were of great value.  Entitled to full reduction of one third.  First offence - out of character.  Positive good character asserted.  None of these factors amounting to exceptional mitigation justifying a departure from a custodial sentence. 

The Defence

Emphasised early guilty pleas.  A middle-aged woman of previous good character.  Undertaken unpaid voluntary work in the community.  Had lost her employment, which she loved, and also involvement in the Boy Scouts.  Horrified by what she had done.  Remorse.  No risk of reoffending, no gain or advantage to her in consequence of her actions.  Accepted that in principle custodial was the correct sentence but invited the Court to give careful consideration to non-custodial alternatives of either Probation/Community Service or a suspended sentence.  Suggested cumulatively matters of mitigation were exceptional. 

Previous Convictions:

None. 

Conclusions:

Count 1:	12 months' imprisonment.
Count 2:	15 months' imprisonment, concurrent.

Total: 15 months' imprisonment. 

Sentence and Observations of Court:

J to be sentenced for two charges of perverting the course of justice and perjury.  The Court outlined underlying facts.  The Court viewed both counts as being very serious offences.  The Court cited various extracts from both English and Jersey authorities.  Endorsed the established principle for such offences, save in exceptional cases should result in an immediate sentence of imprisonment.  By tipping off U she showed a complete disregard of the possible consequences.  The Court said that she had not known that U had evidence on his computer, nor that he would attempt to delete the same.  However, the Court emphasised that the potential consequences could have been extremely serious both in terms of the effect upon the victim, and also upon the course of justice.  In relation to the perjury count, she knew at that time that U had been found guilty of sexual offending and she had deliberately knowingly lied to the Court to support U's alibi.  The motive for such conduct was not relevant.  Perjury strikes at the very root of the justice system. 

An immediate custodial sentence was not only inevitable but was right.  The Court had reached that conclusion despite the very substantial amount of personal mitigation available to the defendant, and the Court had some sympathy for the fact that she had been so misguided at the time. 

Count 1:	15 months' imprisonment.
Count 2:	15 months' imprisonment, concurrent.

Total: 15 months' imprisonment. 

J. C. Gollop, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        J, you are here to be sentenced on an Indictment containing two charges, one of perverting the course of justice and the other of perjury.  The underlying circumstances are that your adopted son made a complaint when aged 15 to the police that he had been abused by U.  You were told by the police of that complaint and of the need for the police to interview him.  The police impressed on you the need not to disclose to U that the complaint had been made and that an investigation was underway.  They emphasised that disclosure could amount to interference with the investigation.  Nonetheless the following day, you spoke to U when he visited you at your family home and you told him about the complaint.  It transpires that in the early hours of the day after that, shortly after midnight, someone, probably U, tried to delete from his computer indecent images of children which had been downloaded from the internet and also a film of U indecently assaulting the complainant, Z.  So in other words the direct result of your going to see U was the possibility of justice being perverted and I have to say that the Court takes the view that the offence of attempting to pervert the course of justice, for the reasons I will come on to in this case, is every bit as serious as the offence of perjury. 

2.        The Crown has drawn to the Court's attention a number of previous decisions.  One of those a Jersey case of AG-v-Bates and Leneghan [1982] J J 255 in 1982 where the full Court then said:-

"... the Court desires to take the opportunity of saying that the offence of perjury is extremely grave and imprisonment must be the normal punishment.  Indeed we think it very desirable to make that clear, because it is interesting to note from the information we have in this case that both appellants said they did not realise how serious it was to lie on oath in Court proceedings.  If it is really the case that both did not realise that, then the sooner this Court makes it clear that it is a most serious matter the better.  As has been said, this offence strikes at the very roots of justice and the Court considers that it must make it clear by custodial sentences and that that is the sentencing policy of this Court."

3.        In the case of R-v-Davies [1974] 59 Cr. App. R. 311 the Court of Appeal in England was saying this in relation to perjury:-

"What the learned judge said was that as a matter of sentencing practice it is for all practical purposes impossible to avoid a prison sentence on a conviction for perjury.  The learned judge was absolutely right in so saying.  There is a long line of cases in this Court where it has been said again and again that except in the most exceptional cases (and those must be truly exceptional) where persons are brought to book for perjury it is inevitable that a custodial sentence follows."

That case was a long time ago, 1974, but the principles which it expounds have been regularly applied since.  Subsequently in Davies the Court said this:-

"It has been said here that the appellant was a well-meaning but mistaken father, trying to help his two children by lying on their behalf.  This is not a view which this Court can accept. 

The question is whether we can find any ground, as Mr Clarke has urged, for putting this case into a special category.  It is suggested that this was done in order to help the children and that it was done out of misguided loyalty.  With respect, this Court is unable to take so charitable a view.  Anybody sympathises with a father whose natural instincts are to try and help his sons when they are in trouble.  But the right way to help the sons is not to lie on their behalf.  In the view of this Court the learned judge and the justices were absolutely right to impose a substantial prison sentence."

4.        And then in the English case of R-v-Archer [2003] 1 Cr. App. R. (S) 86 when dealing with perjury the Court of Appeal said this, and we endorse what was said:-

"In our judgment, there are many factors to be considered when determining the appropriate level of sentence for perjury and related offences.  We do not purport to give an exhaustive list.  They include the number of offences committed; the timescale over which they are committed; whether they are planned or spontaneous; whether they are persisted in; whether the lies which are told or the fabrications which are embarked upon have any actual impact on the proceedings in question; whether the activities of the defendant draw in others; what the relationship is between others who are drawn in and the defendant". 

5.        I will deal first of all with the charge of attempting to pervert the course of justice.  Now the Court accepts that it was not deliberately malicious conduct towards your adopted son to do what you did and also accepts that you did not know that U had the critical evidence on his computer.  But one only has to see what the results could have been to see how serious the attempt to pervert the course of justice was.  Had U been able to delete successfully the film which he took of his abuse of Z, there would have been little, if any, corroborative evidence of Z's complaints.  It may be that the Prosecution would have considered that the evidential test had not been passed and there would have been no prosecution at all, or even if brought, the result could then have been a successful defence with Z suffering the additional trauma of giving evidence without the jury convicting of the offence.  And now, in the cold light of day, imagine the effect on Z.  Here was a 15 year old boy who plucks up the courage to complain that an adult who, he might well have thought, would have been believed ahead of him, has sexually abused him since he was 12; either the Prosecution do not bring a charge, or if they do, the jury perhaps acquit for lack of corroboration, corroboration that was unavailable because you had tipped off the accused.  You took it on yourself to disbelieve your adopted son and that was a matter for you, but to take positive steps then to interfere in the investigation when you had been asked quite specifically not to do so, was to arrogate to yourself the right to make a decision on U's guilt and prevent a normal investigation taking place. 

6.        Some people may think that offences of perverting the course of justice or attempting to pervert the course of justice, or indeed of perjury, do not directly affect individuals; that somehow or other the comments of the Courts which I have just given, are the views of intellectuals, are theoretical utterances that merely protect court process; they are not.  The possibility of appalling emotional damage to Z here was real and knowing that the police had given you a warning not to approach U, knowing you promised not to do so, you still did approach him and he acted on that warning.  We cannot think otherwise than that the offence is extremely serious. 

7.        In the case of Weston-v-AG [1980] JJ 43 the accused was charged with an offence which involved the planting of cannabis in the desk and car of a teacher and then tipping off the police with an anonymous letter.  The Court of Appeal, when reviewing a sentence of 3 years' imprisonment in that case, noted that the appellant was acting deliberately and with premeditation and the Court said:-

"We use those words in spite of the emotional state as it has been described to us which he is said to have been in for a number of months.  What he did, he did with apparently complete disregard of the possible consequences for the teacher; consequences which would have included prosecution and, it appears to us, the likelihood at least of complete professional ruin". 

Now the defendant in that case received 3 years' imprisonment and one important difference is that he did what he did deliberately knowing that the cannabis that he was planting was not cannabis of the victim of the offence and that is not the same in your case and we appreciate that.  But the consequences nonetheless were potentially extremely serious and could have had a life-altering effect on Z.  We are pleased that you recognise that now, but it does not affect the seriousness of what you did at the time. 

8.        We turn next to the question of perjury.  The Assize trial commenced on the 9^th November, 2010, and the trial before the Inferior Number commenced on the 28^th June, 2011.  We have checked the court records which reveal that you gave evidence before the Court on the second trial in June 2011, so at the time that you did that, you knew that U was guilty of abusing Z, you knew that and yet knowingly, deliberately, you lied to the Court.  The only motives presumably can have been to assist U escape justice or because you were frightened that you had already established a position and you could not depart from it.  Who can tell the motivation and it really does not matter for the purposes of this sentence.  The offence of perjury is an extremely serious offence because it strikes, as has been said so often, at the very root of the justice which the Court tries to give.  It is important, fundamentally important, for that reason.  

9.         The Court considers that an immediate custodial sentence is not only inevitable but is right and for all the reasons we have given, we are going to grant the conclusions of the Crown in respect of Count 2 on the Indictment, that is to say 15 months' imprisonment.  We think the sentence in relation to the attempt to pervert the course of justice was also a charge which merits 15 months' imprisonment, for the reasons which we have given.  They will operate concurrently and so you will go to prison for a total of 15 months. 

10.      We reach that conclusion despite a very substantial amount of personal mitigation which we have spent some time considering.  We understand all that mitigation and we certainly have some sympathy for the fact that you are now in a position where undoubtedly you cannot understand why you were so misguided at the time.  We have sympathy for that but it cannot take away from the strong reasons which direct that an immediate custodial sentence is inevitable.  So you are sent to prison for 15 months. 

Authorities

AG-v-Bates and Leneghan [1982] JJ 255.

R-v-Davies [1974] 59 Cr. App. R. 311.

R-v-Archer [2003] 1 Cr. App. R (S) 86.

Weston-v-AG [1980] JJ 43.

Attorney General's Reference (No 17 of 2008) Sheehan Dinler [2008] EWCA Crim 1341.

R-v-A [2012] EWCA Crim 2439.

Attorney General's Reference (No 16 of 2009) Yates [2009] EWCA Crim 2439.

Raikes-v-AG [1985-86] JLR N 25a.

Extracts from Current Sentencing Practice.

Criminal Justice (Suspension of Prison Sentences)(Jersey) Law 2003.

AG-v-Tucker [2003] JRC 119.

AG-v-Monet 2001/3A.

AG-v-Garcia and Garcia 1998/85.