Supreme Court: Shunning perjury by not giving evidence at trial not a mitigating factor in sentencing

About this case:

• Judgment:
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Delivering the unanimous judgment of the five-judge Court, Mr Justice Peter Charleton stated that it defied logic “to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence”.

Background

In July 2007, the emergency services were called to assist a sinking boat. Members of the Coast Guard found a man floating in the ocean in a force 6 gales; around him in the water was 1.5 tonnes of cocaine.

Four men, including Mr Perry Wharrie, were arrested for their involvement.

Sentencing

Mr Wharrie had a long criminal record in England, including a conviction of murder in 1989. On being released in 2005, Wharrie broke the conditions of his licence, cut off contact with his parole officer and left England, travelling into Ireland under a false passport.

In Cork Circuit Criminal Court, Mr Wharrie faced a charge under s. 15A of the Misuse of Drugs Act 1977 as amended, which fixes a minimum 10-year sentence for the possession of controlled drugs for unlawful sale of supply exceeding €13,000 in value.

Here, the estimate for the value of the drugs varied between €108 million and €400 million.

One of the accused pleaded guilty on arraignment but Mr Wharrie and two others put the prosecution on proof by pleading not guilty.

During a 42-day trial, two of the accused, but not Mr Wharrie, gave evidence in their own defence. That evidence was later described by the trial judge as an “insult to the intelligence of the jury”.

In July 2008, despite “those sterling efforts” all men were found guilty.

Sentences of 10 to 30 years were handed down, with Mr Wharrie being sentenced to 30-years imprisonment.

Court of Criminal Appeal

In the Court of Criminal Appeal, the “ingenious” argument of reduction in sentence because of no perjured evidence from an accused was successful; the situation of Mr Wharrie, who had not given evidence in his own defence, being contrasted with that of his co-accused.

This resulted in the reduction of his sentence to 17 years and 6 months.

Justice Charleton said it was clear that the Court of Criminal Appeal “regarded the decision by Mr Wharrie to shun the witness box and any attempt at perjury in defence of himself as being a significant factor”.

Testimonials on the behaviour of the accused while on remand were treated as a mitigating factor; his age and isolation from family members due to imprisonment in Ireland as an Englishman also considered; however these were regarded as only requiring “a modest discount” at sentencing.

Shunning perjury not mitigation

The DPP certified the following question for appeal to the Supreme Court: “is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial?”

Justice Charleton emphasised that nothing should be considered at sentencing which would inhibit the full entitlement of an accused person to contest the case and to make whatever contrary case he or she regards as appropriate.

While sentencing occurs at a stage of the trial when the presumption of innocence is no longer in place, it must be remembered that throughout the trial and up to the point where the accused is pronounced guilty, he or she is an innocent person in law and is entitled to conduct the case on that basis.

Nothing which would inhibit the constitutional entitlement to a trial in due course of law under Article 38.1 can be taken as being an aggravating factor at sentencing stage.

Were the principle otherwise, inhibition might hinder the defence of those presumed to be innocent (R v Harper 2 QB 108, and Siganto v R (1998) 194 CLR 656 considered).

While an accused may be given credit appropriate to an early admission of guilt, a plea of guilty, or, to a lesser extent, an approach to the trial process which saves time and money, no trial judge is entitled to aggravate the appropriate sentence because the accused gave perjured evidence in his own defence or in defence of others.

Furthermore, it was emphasised that perjury is a crime at common law in Ireland – therefore the giving of false evidence on oath, and knowing such evidence to be false was a separate offence that should not be conflated with whatever crime the accused is found guilty of; and it is not a factor of aggravation of an existing offence

Justice Charleton said that it defied logic “to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence”.

As such, the answer to the question certified, on a without prejudice basis, was that it was “not a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give false evidence at his trial”.