R v Smith; Ex parte Attorney-General (Qld)
[2000] QCA 390
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- R v Smith; Ex parte Attorney-General (Qld)[2000] QCA 390
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R v Smith; Ex parte Attorney-General (Qld)[2000] QCA 390
R v Smith; Ex parte Attorney-General (Qld)[2000] QCA 390
COURT OF APPEAL
de JERSEY CJ
PINCUS JA
WHITE J
CA No 104 of 2000
THE QUEEN
v.
GERALD CHARLES SMITH Respondent
and
ATTORNEY-GENERAL OF QUEENSLAND Appellant
BRISBANE
..DATE 25/09/2000
JUDGMENT AND BENCH WARRANT
THE CHIEF JUSTICE: The Attorney-General appeals against sentences imposed in the District Court on a former police officer, who pleaded guilty on 17 counts of official corruption and one count of perjury. The offences of official corruption were committed over a substantial period, 1 October 1987 to 1 April 1989.
The respondent was then a sergeant of police, who worked as a telephone interceptor at Police Operations Centre. He would arrange for police officers, tow trucks and emergency services units to attend at the scenes of motor vehicle accidents. Though rightly required to respect a tow truck roster system, designed to ensure a fair distribution of the work among interested tow truck operators, the respondent ignored that system and dishonestly gave relevant information to a friend, one Ready, who was a tow truck operator and who would consequently attend and take up the jobs to the detriment of the other operators on the roster or some of them.
In return, Ready deposited money which could be called a spotter's fee, into the respondent's TAB account. The amounts varied, $30, $70, $90 and $150. The total yield to the respondent was $1,110. The Criminal Justice Commission commenced an investigation into the matter in January 1992 or 1993 - it is not entirely clear from the record.
The respondent gave evidence on oath before the Commission in June 1997, falsely denying having been given the money by Ready in return for the traffic accident information, hence the perjury count. On 20 March 2000 the learned Judge sentenced the respondent to 14 months' imprisonment for the offences of corruption, wholly suspended for an operational period of three years and for the perjury, to two years' imprisonment concurrently, suspended after two months for an operational period of three years.
The respondent served the period of two months actual imprisonment and has now been at large for some four months. The Attorney-General appeals on the grounds that the sentences are manifestly inadequate, fail to achieve proper deterrence and give undue weight to belated co-operation on the part of the respondent with the authorities.
The treatment of the respondent was influenced by the sentences imposed on one McMorrin. McMorrin committed similar offences of official corruption for the benefit of Ready and himself. Like this respondent, McMorrin had no prior criminal history. McMorrin ultimately pleaded guilty to nine charges, from the commission of which he gained $690.
He was sentenced for official corruption to 18 months' imprisonment, wholly suspended for four years. The Criminal Justice Commission inquiry led to the laying of the charges against McMorrin and this respondent and Ready. The Director of Public Prosecutions apparently decided that proceedings against the respondent and Ready should await the determination of the charges against McMorrin. Unfortunately, that took a very long time. McMorrin was committed for trial in October 1994. The trial was delayed until April 1997 because of illness and various other circumstances. A ruling of no case to answer then led to the entry of a nolle prosequi.
A new indictment was later presented, which led to a trial in February 1998. Having unsuccessfully argued for a stay, McMorrin pleaded guilty on the second day of that trial and was sentenced on nine counts of official corruption. This respondent's sentencing Judge apparently worked from McMorrin's fully suspended 18 month term, adjusting it back to 14 months for the respondent on the basis that whereas McMorrin went to trial, this respondent foreshadowed his intended pleas of guilty some months, about four, before being sentenced.
It appears that the bringing of charges against the respondent and Ready was assisted at least by information given by McMorrin. The respondent and Ready were charged in December 1998 and committed for trial in May 1999. The trial came on in March 2000. Ready pleaded not guilty. The respondent's pleas of guilty were coupled with a preparedness to give evidence against Ready, which the respondent proceeded to do.
The Crown Prosecutor submitted before the learning sentencing Judge, that the respondent should be sentenced to two to three years' imprisonment and that because of the perjury, he should spend "some time" in custody. There was no quarrel from the defence as to the appropriateness of a two to three year head sentence for the perjury. The defence submitted, however, that the term should be fully suspended.
The Crown conceded that some favouring was appropriate because of the pleas of guilty foreshadowed some months before the hearing. Defence counsel then submitted that because of additional features, delay for which the respondent bore no responsibility, his dismissal from the Police Service in 1994 because of 15 counts of misconduct, which paralleled 15 of the official corruption charges, and reduction in superannuation benefits payable, any period of actual incarceration should be very limited, not exceeding, it was urged, a maximum of two months.
The learned Judge accepted that position, suggesting it sat comfortably with cases of perjury committed in New South Wales in respect of that State's Independent Commission against Corruption. The Judge particularly had in mind, it would seem, an apparently otherwise generally comparable case, Aristodamou, where the offender was sentenced to two months' imprisonment, but against a relevant maximum penalty in New South Wales of five years, by contrast with the 14 year maximum in Queensland.
McMorrin, it should be noted, was not charged with perjury. Although he also lied to the Criminal Justice Commission, he quickly recanted before that body, a course which this respondent, when being sentenced, unsurprisingly regretted not having taken himself. It is convenient to deal first with the fully suspended 14 month sentences for the offences of official corruption.
In the course of his sentencing remarks, the learned Judge described the $1,110 gained from the commission of these 17 offences over 18 months as being "a ridiculously small amount." The systematic character of the respondent's offending in this way over a substantial period and his being a police officer, rendered that characterisation, if accurate, of no particular significance in determining the appropriate penalty.
As said by Thomas J as he then was, in the Queen v. McNamara and Gray, CA Nos 342 and 343 of 1990:
"Corruption of police officers, even on a small scale, is a very serious matter. It is not an event like a false pretence between private persons; it strikes at the administration of justice at its source."
McNamara and Gray were two police officers with previously unblemished records, convicted by a jury on one count of official corruption, involving their declining to charge someone with possession of a drugs utensil in return for the payment of $200. Their sentence of three years' imprisonment, with parole recommended after 12 months, was upheld on appeal. As with this respondent, their prosecution had been delayed and they had lost their police careers.
Rather differently from this case, their offence was said to have been isolated. Allowing for the circumstance that McNamara and Gray went to trial, these fully suspended 14 month terms would nevertheless in my view, in all the circumstances, appear substantially inadequate. They are explained, however, by the treatment accorded McMorrin.
Considerations of parity, while not determinative, should reasonably in this case militate against this Court's now increasing those terms and the case was argued on that basis. In my view, however, the sentences imposed for the official corruption should not be regarded hereafter as suggesting otherwise appropriate levels of penalty for this sort of offending.
The sentence imposed for the perjury was, in my view, plainly inadequate. In The Queen v. Hunter, ex parte Attorney-General [2000] QCA 97, a 31-year-old woman with no prior criminal history was convicted after a trial on four counts of lying on oath in civil proceedings in the District Court for her own substantial financial advantage.
Her sentence on an Attorney-General's appeal was elevated to three years' imprisonment, with eligibility for parole after 12 months. Again allowing for Hunter's having gone to trial, but acknowledging properly the fundamental significance of this crime of perjury, a sentence requiring the serving of only two months' imprisonment is, in my view, seen to be inadequate.
On the face of it, there is a disproportion between the two year sentence and the 1/12th or two months to be served, which calls for explanation. Of course in principle, a sentence may be fully suspended, but here the learned Judge acknowledged - and rightly acknowledged - a need for the respondent to serve some time in custody, noting in particular the nature of the offence.
One asks, therefore, whether requiring him to serve such a comparatively short period was, with respect to the learned Judge, merely a token response and likely to be seen as such. The learned Judge suggested that this incident of perjury was "not as serious as that of a person who commits perjury with a view to covering up an offence or enabling an offender to escape".
It is difficult to understand precisely why he took that view. The respondent lied in order to conceal his own offences of official corruption. I accept in this regard the submission for the appellant, which in writing read:
"The respondent lied on oath to the statutory body tasked to investigate and prevent corruption within the Police Service. His actions must be viewed as being more serious than that of a perjurer who seeks to obtain financial gain in a civil action. The respondent committed perjury in circumstances where he was attempting to prevent the exposure of his own corrupt activities and thus hinder the administration of justice. It must be viewed as in a particularly serious category."
Further, the learned Judge should have drawn no comfort from the two months' sentence imposed in Aristodamou because, other matters apart, of a substantial difference in the prescribed maximum penalties. In my view, the respondent should have been required actually to serve at least six months' imprisonment for this perjury.
That would have allowed sufficiently for the relevant mitigating circumstances, the pleas of guilty, the remorse, the giving of evidence against Ready and the delay. It remains, however, to consider the significance of the respondent's having already served the two months' imprisonment to which he was subjected, having been at large now for approximately four months.
Counsel for the respondent submitted in writing that it would be "intolerable" for him now to be returned to custody. In this particular case, the respondent's having served the term of actual imprisonment ordered by the sentencing Judge, should weigh heavily against now returning him to custody to serve the longer term, which should have been imposed.
On the other hand, the Attorney-General's appeal having been instituted on 17 April 2000, at a time when the respondent was only about one half of the way through the two month term, he should since have been aware at all times of the continuing jeopardy in which he stood. Overall, I consider that the interests of justice do require in this case that the respondent should now serve the additional four months in custody.
The special need to deter crime of this gravity, striking at the integrity of the Criminal Justice system warrants a salutary response. The current penalty could not, in my view, reasonably be seen as sending the right signal to other potential offenders. I would allow the appeal to the extent of varying the sentence imposed in respect of the count of perjury to one of imprisonment for two years, suspended after six months for an operational period of three years.
The period of two months served from 20 March 2000, must of course be regarded as imprisonment served under that revised sentence.
PINCUS JA: The cohesion of our society depends in substantial part on public confidence in the honesty of those who administer justice. Police have extensive powers. Their activities can ruin reputations, can put citizens in gaol, or can save them from deserved gaol. The Courts must focus on these considerations when considering sentences for police corruption.
I am quite concerned at the possibility that the outcomes of these two cases, that is the respondent Mr Smith's case and that of Mr McMorrin, might lead to the thought that non-custodial sentences can properly be awarded in relation to significant police corruption. It appears to me that it must be a most unusual case in which that would be the result. It is rather strange that the attitude of the prosecution in this case was, apparently, that a non-custodial sentence for significant corruption was permissible.
Subject to these observations, I agree with the reasons of the Chief Justice and I agree with the order his Honour proposes.
WHITE J: I agree with the orders proposed by the Chief Justice for the reasons which he and Mr Justice Pincus have expressed and have nothing further to add.
THE CHIEF JUSTICE: The order will be as I have indicated. There will be a warrant issued for the arrest of the respondent.
...
THE CHIEF JUSTICE: A warrant will issue for the arrest of the respondent, but it should lie in the Registry for the next 48 hours, pending execution.