R v Gmeinder[2001] QCA 354

COURT OF APPEAL

THOMAS JA

WILLIAMS JA

HOLMES J

BRISBANE

DATE 22/08/2001

JUDGMENT

THOMAS JA:  This is an application for leave to appeal against a sentence imposed for official corruption.  The applicant is now 27 years old and was 23 to 25 years old over the period of the offending activity.  He was sentenced to three years' imprisonment suspended after six months with an operational period of three years.

The applicant was a public servant employed by the Queensland Department of Transport at its McGregor Branch.  Information was received that a Transport Department official was issuing members of the Rebel Outlaw motorcycle group with false learner's permits and certificates of registration for vehicle.  Evidence was, in due course, obtained showing a modus operandi under which a person desiring such a document would contact an intermediary who would contact the applicant.  The intermediary would nominate a password to the person seeking the documents who would then give it to the applicant and receive documents that will be completed without usual prerequisites such as identification.

For these services the applicant received substantial fees.  Over the period of a little over two years during which he engaged in this system he processed 72 corrupt applications and personally received $30,000.  During the investigation period the applicant was covertly videoed and a strong case was prepared.  When confronted by police he initially admitted to only a small number of offences but when interviewed a second time made full and frank admissions.

Part of the sentencing procedure was conducted under section 13A of the Penalties and Sentences Act.  Without revealing details it is common ground that the applicant provided valuable information and cooperation to the authorities which was of a kind which might expose the applicant to considerable personal risk.  No doubt this induced his Honour to recommend to the prison authorities, as he did, that the applicant's sentence be served in protective custody.

Mr Moynihan, who appeared for the applicant, made no complaint in relation to the head sentence or of application of principles concerning informer's discount in relation to the present matter.  His basic submission is that the sentencing discretion miscarried because his Honour failed to give sufficient weight to the following matters:

(1)relatively young age (23 to 25 at the time of offending);

(2)absence of prior criminal history;

(3)stable employment;

(4)plea of guilty upon ex officio indictment.

Mr Moynihan also submitted that the applicant had been corrupted because he had been a casual user of drugs and that the money received by him over the periods in question was spent mainly on drugs.  This attempt to cast blame upon a drug habit, rather than personal responsibility, was not particularised or supported by evidence or explanation.  There is no sufficient basis provided for the reliance which Mr Moynihan sought to place upon comments in R v. Hammond [1997] 2 Queensland Reports 195, 199 to 200.  Those comments identify some circumstances in which drug addiction may be recognised by the Courts as a factor enabling a more compassionate view to be taken than might otherwise be the case.  I do not think that the applicant's affinity for drugs in the present matter is of any particular assistance to him.

Mr Moynihan's submission is that his Honour erred in failing to wholly suspend the term of imprisonment.  However, it seems to me that there would need to exist extraordinary circumstances before a crime as serious as the present one could result in a sentence without some real time being required to be served as a consequence.  Official corruption strikes at the health of society and unless strongly deterred has a ready capacity to spread.  The honest administration of our system of government is a very important and fundamental matter that needs support from the Courts.  The corruption here was naked and gross. 

I fail to see how his Honour could rightfully have abated the period to be served to any greater degree than he did even accepting, as I do, that the cooperation supplied by the applicant was highly meritorious and bound to be burdensome to him.  It is true that the Crown Prosecutor below conceded that it was within his Honour's sentencing discretion to wholly suspend the term of imprisonment although he also indicated that a short term of imprisonment was also within the available range.  In my view, the Crown Prosecutor's concession was unduly generous.  I repeat that I find it very difficult to imagine circumstances in which deliberate official corruption of this magnitude over such a period could properly call for a sentence which did not require some period of actual custody to be served.  The potential for public harm from the present sort of activity is enormous.

I note that in the present matter no challenge is made in relation to the indicative sentence in the course of the section 13A procedure.  The only precedents referred to were sentences in the District Court resulting in sentences of similar proportions to the present one, in particular, Stumer and Parkinson.  Without discussing points of dissimilarity I am prepared to say that despite the points argued in the applicant's favour I do not think that the present sentence was in any way excessive.  The mitigating factors were, I think, sufficiently taken into account.

I would therefore refuse the application.

WILLIAMS JA:  I agree.

HOLMES J:  I agree.

THOMAS JA:  Do you wish any further details?

MR MOYNIHAN:  No, thank you, your Honour.

THOMAS JA:  Thank you, Mr Moynihan.