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KOURA v R [2005] NZCA 118 (24 May 2005)

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KOURA v R [2005] NZCA 118 (24 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA16/05

THE QUEEN

v

EBRAHIM MOHAMMED KOURA

Hearing: 23 May 2005

Court: William Young, Panckhurst and Doogue JJ

Counsel: T W Fournier for Appellant
P J Shamy and K T Dalziel for Crown

Judgment: 24 May 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young J)

Introduction

[1] The appellant was found guilty by a jury on charges of forgery and breaching the Residential Tenancies Act 1986 by giving false evidence to the Tenancy Tribunal. He was subsequently sentenced by the trial Judge, Judge P A Moran, to 12 months imprisonment (with leave to apply for home detention). He now appeals against sentence.

The facts

[2] The appellant was formerly a residential tenant at 708 Worcester Street, Christchurch. At the end of the tenancy, there was dispute between him and his landlord about some curtains and drapes (worth around $1,800) which he had removed from the premises. The upshot was that the landlord brought proceedings against the appellant before the Tenancy Tribunal to recover the curtains and drapes or their value.
[3] In the course of the proceedings, the appellant gave evidence (under a promise to tell the truth) that he had given the curtains and drapes to the landlord’s property manager, a Ms Swarbrick. In support of that claim, he produced what appeared to be photocopy of a receipt, signed by Ms Swarbrick, for the curtains and drapes. This document was a forgery which the appellant had created by splicing words that he had written together with a photocopy of Ms Swarbrick’s signature from another document.
[4] The Tribunal did not accept the appellant’s evidence and found for the landlord.
[5] The appellant was then prosecuted for forgery (in relation to the receipt) and under the Residential Tenancies Act 1986 for giving false evidence. He was found guilty by a jury in the District Court at Christchurch on both counts.
[6] We are not sure whether the forgery of which the appellant was found guilty was within s 256(1) or (2) of the Crimes Act 1961. If the case was within s 256(1) the maximum penalty available was 10 years imprisonment. On the other hand, if it was within s 256(2), the maximum penalty was only three years imprisonment. The case would appear to us to have been within s 256(1) but, conceivably, the Judge may have summed up to the jury under s 256(2) in which case the maximum penalty would have to be three years imprisonment. How the Judge summed up is not apparent from the materials before us.

The appellant

[7] The appellant is now 61. He was born in Egypt where he lived until 1989 when he emigrated to New Zealand.
[8] In the 18 months prior to appearing for sentence on the current charges, he accumulated convictions for possession of cannabis, threatening to kill and possession of an offensive weapon.
[9] His only income consists of payments from the Accident Compensation Corporation.

The Judge’s sentencing remarks

[10] In his sentencing remarks the Judge observed:

[6] The aggravating features of the offending are first of all the combination of them that not only did you tell a deliberate lie to the Tribunal, but you backed it up with a document that you had forged. You went to a considerable amount of trouble obviously to do that and to produce this forged document to back up your lie. It was a piece of deception, which was blatant. It was transparent and you are unrepentant. To this day you insist that Ms Swarbrick did sign a receipt and that photocopy you produced in court was a photocopy of a genuine document. You cannot claim any benefit today for being sorry for what you did because you still say you did no wrong. This of course had repercussions from Ms Swarbrick. She had to come to court and be cross-examined on the basis that she was at best mistaken and at worst a liar. There is nothing that can be said in mitigation, nothing that can be said to put a good spin on what you did, but in relation to yourself. I do consider the mitigating factor that you are a man of some considerable age now. You are 60 years of age. You had no convictions at all until very recently when your life seems to have gone wrong for you and you have been convicted significantly of other crimes of dishonesty involving what looks like Accident Compensation Corporation fraud.
[7] Offending of this kind does indeed strike at the core of the Tribunal systems that are designed to provide forums where people can come along and have disputes resolved and it is just important in those forums that people tell the truth when they promise to as it is for people to tell the truth in court when they take an oath. I accept what your lawyer says that people do tell lies all the time in court, but I do not accept that it is okay. It is not and if people can have charges proven against them they will be convicted and imprisoned. The reason that people are not prosecuted for telling lies in court is because most of the time it cannot be proven not to the requisite standard to sustain a conviction. It is important in sentencing you today to stop you doing anything like this again and to keep on sending a message to the community that people who tell lies in proceedings where they promised or sworn to tell the truth are going to be in a heap of trouble. That requires a sentence of imprisonment.
[8] In your case the combination of telling lies backed up with forged documents, which puts you in a category, which in my judgment, requires a sentence of imprisonment of 12 months. That is the sentence of the court. You are sentenced to 12 months imprisonment.
[9] You are granted leave to apply for home detention. I do that principally because of your age and the fact that for you a term of imprisonment will be hard. I am not promising you that you will get home detention and I rather think that if you are to be granted home detention you are going to have to own up to your wrong doing, acknowledge what you did was wrong otherwise you continue to pose a risk to the community of further offending of this kind.

[11] We were told that the appellant was subsequently released on home detention.

The appeal

The appellant’s argument

[12] Mr Fournier for the appellant contended that the offence under the Residential Tenancies Act is of primary significance for sentencing purposes. This offence carries a maximum sentence of only three years imprisonment.
[13] His broad contention was that the sentence imposed was disproportionate to the gravity of the offending which, as he stressed, occurred in the context of a minor civil dispute over $1,800. He referred to R v Barker CA51/85 10 July 1985 in which a six months sentence was seen as not excessive for perjury committed in the context of a criminal prosecution. He sought to use that case as providing a benchmark for the evaluation of the appellant’s sentence.

The Crown response

[14] For the Crown, Mr Shamy referred us to the sentencing remarks of Hammond J in R v Mackie (1998) 16 CRNZ 248 in which a number of sentences imposed for perjury are reviewed. Mr Shamy accepted that the sentence of 12 months imprisonment was at the higher end of the available sanctions but maintained that it was within the range which was available to the Judge.

Evaluation

[15] There are no mitigating factors. The appellant did not plead guilty, showed no remorse and is not a person of good character. He gave false evidence to the Tenancy Tribunal to further his own position. In order to lend credibility to his account of events, he forged a document.
[16] The only issue is whether the sentence of 12 months imprisonment, as imposed, over-allows for the inherent criminality of his conduct.
[17] We are by no means sure that Mr Fournier was right in contending that the sentencing range available to the Judge was necessarily constrained by the three year maximum sentence provided for by the Residential Tenancies Act. As we have noted, in certain circumstances (and these circumstances may arguably have been present here), forgery carries a maximum sentence of 10 years imprisonment. We are, however, prepared to address the appeal on the basis that Mr Fournier’s contention is correct; this particularly given the uncertainty as to whether the case was dealt with under s 256(1) or (2) of the Crimes Act.
[18] The Residential Tenancies Act contemplates sentences of up to three years imprisonment for giving false evidence. Given the nature of the Tribunal’s jurisdiction, the offence will only be committed in the context of comparatively minor civil proceedings. Allowing for this consideration, the appellant’s conduct, particularly as it involved the forging of documentation to support his false testimony, and thus significant premeditation, is at the serious end of the culpability continuum.
[19] There is no established tariff for offences of the type involved here which is plainly analogous to perjury. Such offending strikes at the administration of justice. Perjury is prevalent but prosecutions are rare. In this context, deterrence is very important. The fact that the appellant’s offending occurred in the context of informally conducted proceedings in the Tenancy Tribunal does not detract from the need for deterrence. Indeed, in a sense, that informality (which must make the uncovering of false evidence even more difficult than normal) reinforces the need for deterrent sentences when offending is detected. No doubt there have been cases of perjury in which Judges have imposed community based sentences. But those who commit perjury (which is a fair way of describing the appellant’s offending) can hardly complain if the result is a prison sentence. So we see nothing inappropriate in a prison sentence.
[20] Over the last 15 years or so, there have been considerable changes in the underlying sentencing regime and in sentencing practice (particularly as to the extent to which sentences are discounted for pleas of guilty). So there are difficulties comparing currently imposed sentences with those which were imposed a decade or more ago. It follows that a single decision such as Barker cannot be regarded as setting a benchmark for assessing the sentence imposed on the appellant. Given the importance of deterrence generally, the premeditated nature of the offending and the forgery of the receipt, we think that the sentence imposed was not manifestly excessive.

Result

[21] The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch

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[2]	The appellant was formerly a residential tenant at 708 Worcester Street, Christchurch. At the end of the tenancy, there was dispute between him and his landlord about some curtains and drapes (worth around $1,800) which he had removed from the premises. The upshot was that the landlord brought proceedings against the appellant before the Tenancy Tribunal to recover the curtains and drapes or their value.
[3]	In the course of the proceedings, the appellant gave evidence (under a promise to tell the truth) that he had given the curtains and drapes to the landlord’s property manager, a Ms Swarbrick. In support of that claim, he produced what appeared to be photocopy of a receipt, signed by Ms Swarbrick, for the curtains and drapes. This document was a forgery which the appellant had created by splicing words that he had written together with a photocopy of Ms Swarbrick’s signature from another document.
[4]	The Tribunal did not accept the appellant’s evidence and found for the landlord.
[5]	The appellant was then prosecuted for forgery (in relation to the receipt) and under the Residential Tenancies Act 1986 for giving false evidence. He was found guilty by a jury in the District Court at Christchurch on both counts.
[6]	We are not sure whether the forgery of which the appellant was found guilty was within s 256(1) or (2) of the Crimes Act 1961. If the case was within s 256(1) the maximum penalty available was 10 years imprisonment. On the other hand, if it was within s 256(2), the maximum penalty was only three years imprisonment. The case would appear to us to have been within s 256(1) but, conceivably, the Judge may have summed up to the jury under s 256(2) in which case the maximum penalty would have to be three years imprisonment. How the Judge summed up is not apparent from the materials before us.

[7]	The appellant is now 61. He was born in Egypt where he lived until 1989 when he emigrated to New Zealand.
[8]	In the 18 months prior to appearing for sentence on the current charges, he accumulated convictions for possession of cannabis, threatening to kill and possession of an offensive weapon.
[9]	His only income consists of payments from the Accident Compensation Corporation.

[15]	There are no mitigating factors. The appellant did not plead guilty, showed no remorse and is not a person of good character. He gave false evidence to the Tenancy Tribunal to further his own position. In order to lend credibility to his account of events, he forged a document.
[16]	The only issue is whether the sentence of 12 months imprisonment, as imposed, over-allows for the inherent criminality of his conduct.
[17]	We are by no means sure that Mr Fournier was right in contending that the sentencing range available to the Judge was necessarily constrained by the three year maximum sentence provided for by the Residential Tenancies Act. As we have noted, in certain circumstances (and these circumstances may arguably have been present here), forgery carries a maximum sentence of 10 years imprisonment. We are, however, prepared to address the appeal on the basis that Mr Fournier’s contention is correct; this particularly given the uncertainty as to whether the case was dealt with under s 256(1) or (2) of the Crimes Act.
[18]	The Residential Tenancies Act contemplates sentences of up to three years imprisonment for giving false evidence. Given the nature of the Tribunal’s jurisdiction, the offence will only be committed in the context of comparatively minor civil proceedings. Allowing for this consideration, the appellant’s conduct, particularly as it involved the forging of documentation to support his false testimony, and thus significant premeditation, is at the serious end of the culpability continuum.
[19]	There is no established tariff for offences of the type involved here which is plainly analogous to perjury. Such offending strikes at the administration of justice. Perjury is prevalent but prosecutions are rare. In this context, deterrence is very important. The fact that the appellant’s offending occurred in the context of informally conducted proceedings in the Tenancy Tribunal does not detract from the need for deterrence. Indeed, in a sense, that informality (which must make the uncovering of false evidence even more difficult than normal) reinforces the need for deterrent sentences when offending is detected. No doubt there have been cases of perjury in which Judges have imposed community based sentences. But those who commit perjury (which is a fair way of describing the appellant’s offending) can hardly complain if the result is a prison sentence. So we see nothing inappropriate in a prison sentence.
[20]	Over the last 15 years or so, there have been considerable changes in the underlying sentencing regime and in sentencing practice (particularly as to the extent to which sentences are discounted for pleas of guilty). So there are difficulties comparing currently imposed sentences with those which were imposed a decade or more ago. It follows that a single decision such as Barker cannot be regarded as setting a benchmark for assessing the sentence imposed on the appellant. Given the importance of deterrence generally, the premeditated nature of the offending and the forgery of the receipt, we think that the sentence imposed was not manifestly excessive.