R v Clark[1999] QCA 222

COURT OF APPEAL

PINCUS JA

DAVIES JA

DEMACK J

BRISBANE

DATE 16/06/99

JUDGMENT

DEMACK J:  This is an application for leave to appeal against sentences imposed in the District Court on 19 February this year.  The applicant pleaded guilty to two charges of official corruption.   He received a sentence of four and a half years imprisonment with a recommendation for parole after 18 months.

The applicant was a Senior Constable of Police stationed at Surfers Paradise Police Station where he had worked for several years as a detective.  He was said to have used alcohol and cannabis as a result of his earlier years' experiences working as a covert police officer and this substance abuse led him into desperate financial straits.

The offences related to the applicant seeking and obtaining a payment of money in return for his minimising the role of a person that he was investigating in relation to an offence. 

The CJC investigators became aware that the applicant was associating with a person believed to be involved in the drug trade and listening devices were placed in that person's car and home as a result of which these offences were detected.

A man, Benson, had made a complaint to the police about being threatened and assaulted by another man, Bellamy, and others.  The investigation of this offence had passed through a number of hands and eventually reached the applicant. 

The applicant, for reasons that are not all that clear on the transcripts, then spoke to the man that he knew was involved in the drug trade, suggesting that he could get money out of Bellamy.  The man in the drug trade then had contact with Bellamy and various negotiations occurred, the idea being that if the applicant did not proceed with the investigation he would receive some $2,000.  Ultimately $400 was received and the tapes that were tendered, as I have said, do not really give a clear pattern of what actually was involved because of the curious manner of speaking adopted by the people involved.

However, it was out of those events that the two charges were preferred.  The first charge was of attempting to obtain a sum of money and the second charge was the actual obtaining of the sum of $400.

The learned sentencing judge had before him psychiatric reports from a treating psychiatrist and also from Dr Joan Lawrence.  It is convenient to refer to Dr Lawrence's summary in her second report which was obtained on 4 February this year shortly before the sentencing.

In her summary of her opinion she says that before the applicant entered the police force at the age of 19 he was a normal, well-adjusted person.  He became a covert operative in the Drug Squad and became involved in the use of marijuana in the course of that.  She expresses the view that during that period his experiences would have been conducive to the emergence of some substance abuse/dependence.

During that time he was exposed to a life-threatening event where he understood he was required under force of arms to dig his own grave.  He was able to escape from that when those threatening him became disoriented with drugs.   As a result of these events he had time off work in 1986 for some stress-related psychological disorder. 

He returned to uniform duties, however he remained  marijuana-dependent.  He was involved as a police officer in fighting bushfires and received a citation for that. 

He was also involved, in 1995, in a siege and hostage situation at Binna Burra.  A man had taken his family and threatened to kill them.  The applicant was able to recover the family but the man committed suicide by driving his car over a cliff.  He again received a citation for that but throughout this period his marijuana and alcohol abuse continued.

Dr Lawrence expresses the view that in 1996 when these offences occurred he displayed post-traumatic stress disorder related to those incidents and had an acknowledged marijuana addiction as well as abuse of alcohol and oral amphetamines.

She expresses the view that the activities over which he was charged would have occurred in the context of this disturbed psychological state which she attributes to his police service.

This was before the learned sentencing judge as was the report of his treating psychiatrist.  It is apparent from that psychiatrist, Dr McNamara, whose most recent report is dated 2 February 1999 that the applicant has not responded well to treatment in hospital and as at that date the doctor expressed the view that his severe depression and secondary paranoia do respond to psychotropic medications but his substance abuse problem remains unmanageable as an outpatient and he continues to suffer chronic symptoms of post-traumatic stress disorder and some paranoia.  The paranoia is directed at the Police Service.

The sentencing judge had placed before him decisions of this Court in the matter of Swift, Court of Appeal Nos 295 and 296 of 1998, McNamara and Gray, Court of Appeal Nos 342 and 343 of 1990, as well as a decision of Chief Judge Shanahan, The Queen against Gibson, a sentence imposed on 20 February 1998.

The learned sentencing judge referred in brief to the matters that I have already canvassed.  He noted that the applicant had had an excellent police record and observed "it is most unfortunate that you have now ruined your career for a rather paltry sum of $400."

There is no direct evidence before the sentencing judge of the amount that the applicant may lose by forfeiting his superannuation benefits.  Reference was made in general terms by his counsel to the possible loss of many thousands of dollars.

The sentencing judge indicated that he accepted the psychiatric opinions that these problems that I have referred to can be attributed to some extent to his period in the Police Service.  However he found no excuse for the offences.

The two decisions of this Court to which reference was made are, in their own way, different significantly from this particular case.

The case of McNamara and Gray involved two police officers who, having detected a quantity of cannabis on a female, in effect offered to forget about it if she paid a small sum of money.  That was a matter that went to trial and the sentence of three years' imprisonment with a recommendation for parole after one year was upheld on appeal.  It was an offence committed by two men acting together.  It was undertaken for motives of greed and it was not part of any pattern of offending.

The matter of Swift in which a sentence of five and a half years with a recommendation for parole after two years was upheld on appeal involved a much more persistent activity of official corruption by Swift.  He negotiated a deal to make available information to a known drug dealer about the material in the police computer system.  The amount was apparently $3,000 for six months' service.  In addition to the charge of official corruption there were three charges of perjury which related to lying whilst under investigation.  That shows a much more serious involvement of Swift with corruption than the present case.

As I have indicated both of those matters went to trial and sentences were confirmed on appeal.

It would seem to me that this case fits within those two cases and that if the matter had gone to trial the sentence that might properly have been imposed would have been one of four and a half years.  However, the sentence then has to be reduced because of the plea, although the plea in this case may well not have been borne out of any sense of remorse, but rather recognition of the inevitable.  Nonetheless, the country was saved the expense of a trial and received the certainty of a plea.

In those circumstances, the possible sentence of four and a half years should have been reduced to three and a half years.  It seems to me then, in the light of that, the sentence imposed was manifestly excessive, so that the appeal should be allowed and the sentence reduced accordingly.

In relation to the recommendation for parole, in view of what is said by the recent report of Dr McNamara, it does not seem to me that there is any justification in altering the recommendation previously made.  So, in my view, the application for leave to appeal should be granted; the appeal should be allowed; and the sentences of four and a half years in each instance be reduced to a sentence of three and a half years.  There should be no alteration in the recommendation as to parole.

PINCUS JA:  I agree.

DAVIES JA:  I agree.

PINCUS JA:  The orders of the Court will be application granted; appeal allowed; sentences of four and a half years imposed below are reduced to three and a half years; no alteration to the recommendation for parole.