SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  On 5 September 2006 Michael Cifuentes pleaded guilty in the Cairns District Court to two counts of demanding property with threats, contrary to s 415 of the Criminal Code 1899 (Qld), and was sentenced to three and a half years imprisonment.  The learned sentencing judge did not fix a parole eligibility date, and Mr Cifuentes has applied for leave to appeal the sentence, arguing that it is manifestly excessive.

The offences

[2] Mr Cifuentes was a plain clothes Senior Constable of police in the Queensland Police Service at the time of his offences, and had been a member of that service for some nine years.  He first met the complainant Robert Nastasi on 7 July 2005, when the complainant’s residence was searched by police, amongst whom was the then Senior Constable Cifuentes.  Mr Nastasi was arrested and charged with drug-related offences, which included producing cannabis and possession of cannabis and utensils.  He pleaded guilty and was fined.  The applicant was the arresting officer. 

[3] The applicant had no further dealings with Mr Nastasi until 16 January 2006, when he telephoned Mr Nastasi, and met him by arrangement later that day at the Mareeba CIB office.  Mr Cifuentes told Mr Nastasi that the latter had to pay money, $15,000, or Mr Cifuentes’ “boss” would take action against Mr Nastasi.  That action would include conducting searches at Mr Nastasi’s home, at Mr Nastasi’s parent’s home, and at another address; there was also a threat that Mr Nastasi’s assets would be confiscated, and that his children (for whom Mr Nastasi was the sole carer) would be removed from his care and put into the custody of the State.  Mr Cifuentes told Mr Nastasi to consider how much Mr Nastasi’s children were worth to him, and undertook to relay any offer that Mr Nastasi made to Mr Cifuentes’ “boss”.

[4] Subsequent investigations by Crime and Misconduct Commission (“CMC”) officers established that Mr Cifuentes was acting alone in this matter; he pretended to send text messages to his “boss” to confirm an arrangement that Mr Nastasi would pay $8,000.  The CMC established that those were in fact sent by Mr Cifuentes to himself.

[5] Contact between the two men continued, with more telephone calls to Mr Nastasi from Mr Cifuentes on or about 30 or 31 January 2006, and the thrust of those was that Mr Nastasi was given a short period of time within which to pay the money.  Mr Nastasi went and saw a solicitor, who, it appears, suggested that Mr Nastasi record conversations with Mr Cifuentes and complain to the CMC, which Mr Nastasi did.  On 1 February 2006 telephone conversations took place between the two men, recorded by Mr Nastasi, in which Mr Cifuentes referred to a third person (the “boss”), who was demanding payment of the money the next day.  Ultimately Mr Nastasi agreed to come to the Mareeba Police Station on 6 February 2006.

[6] On that day Mr Nastasi went to the Mareeba Police Station, and spoke with Mr Cifuentes in an electronically recorded conversation, offering to pay “the four today and another four tomorrow”.  Mr Cifuentes said in reply, inter alia, “How, how fucking important are your kids?  That’s what he said.”  Mr Nastasi paid over $4,000 in cash in an envelope to Mr Cifuentes, and by agreement they met the next day, 7 February 2006, and another $4,000 was paid over.  Mr Cifuentes gave Mr Nastasi a letter, which Mr Cifuentes said had come from the “other person”, and about the contents of which Mr Cifuentes said he knew nothing.  Subsequent investigations established that Mr Cifuentes was the author of the document; it contained several threats, and a demand for another $7,000 “If you value your house and kids”. 

[7] Later that day CMC officers apprehended Mr Cifuentes, who dishonestly denied making the arrangements which had been tape recorded and videotaped.  He maintained a facade of falsehood throughout several sessions of questioning, but ultimately conceded what he could not deny.  He still had the second $4,000 paid to him by Mr Nastasi on his person when apprehended.

Mr Cifuentes

[8] The learned sentencing judge accepted that Mr Cifuentes had made a very timely plea of guilty to an ex officio indictment, that the commission of the offence was out of character, and that it was motivated by severe financial need.  That need had resulted from a life threatening medical condition Mr Cifuentes’ daughter had suffered in April 2004, necessitating prolonged hospitalisation, and which placed great financial strain on Mr Cifuentes and his family.  That strain continued after the immediate crises had passed.  Further, Mr Cifuentes had undergone a knee operation on his right knee in December 2005, which prevented him working full-time, at that time of continuing financial hardship.  That acute danger to his daughter’s health, which had involved severe several convulsions, pneumonia, and a collapsed right lung, had followed an earlier agonising period in Mr Cifuentes’ life in 2000, when one of his sons was diagnosed with leukaemia and required to undergo extensive chemotherapy at the Royal Children’s Hospital in Brisbane.  That put severe financial strain on the family.

[9] The learned judge accepted that in his prior police service Mr Cifuentes had been a competent, hard working and conscientious police officer, highly regarded by his colleagues and widely liked and admired, who had seen stressful, distressing, and upsetting matters in the course of that police service.  But the judge correctly regarded it as an aggravating feature that Mr Cifuentes had sought to give Mr Nastasi the distinct impression that Mr Cifuentes was only the messenger, and that a more senior officer was behind the extortion of money from Mr Cifuentes.  As the sentencing judge remarked, that false pretence provided a deterrent to Mr Nastasi against making a complaint.  The judge also noted that Mr Cifuentes had not immediately been overcome by remorse for what had occurred, and had attempted to explain it away. 

[10]  The judge said that Mr Cifuentes’ plea of guilty was as much a recognition of the overwhelming strength of the prosecution case as a display of remorse, and that the judge was not satisfied that there was genuine remorse.  That conclusion had followed, in the opinion of the judge, from a report by a clinical psychologist put before the judge; Mr Cifuentes had told the psychologist that he had been motivated by a desire to make Mr Nastasi look after his children better.  The learned sentencing judge thought that was an absurd proposition, and Mr Kimmins, counsel for Mr Cifuentes on this application, did not challenge that conclusion.

[11]  The learned judge did accept that Mr Cifuentes never intended to carry out any of the threats he made to Mr Nastasi, but also concluded that he did intend to persist with those threats to give himself the best opportunity to get the full $15,000 initially demanded.

The sentence

[12]  When imposing sentence, the judge accepted that police officers sentenced to imprisonment faced difficulties of daily life which are not faced by many other prisoners, but said that it was equally as important that sentences imposed for extortion act as a general deterrent to others.  The judge remarked that without the weight given by the judge to the matters in Mr Cifuentes’ favour, a sentence of about four and a half years imprisonment would have been appropriate.

Argument on the appeal

[13]  Mr Kimmins suggested the appropriate sentence was two years, with Mr Cifuentes being released after serving four months.  He referred this Court to many sentences imposed for similar offences, including sentences involving police officers.  Those were R v Marriner [2006] QCA 32,[1] R v Smith [1997] QCA 109,[2] and the decision in New South Wales of R v O'Mally [2005] NSW CCA 166.[3]

[14]  In R v Marriner (earlier reported in the appeal against conviction as R v M [2004] QCA 184[4]) that offender, who had been a uniformed police officer, was convicted after a trial of the commission of attempted extortion and some 13 other offences, the latter being committed over a period of some 18 years.  Those other offences involved false pretences, assault occasioning bodily harm, misappropriation, indecent assault, and fraud.  Those offences were largely varieties of voyeuristic offences to which Mr Marriner had subjected people known to him, under the pretence that he was involved in undercover police work for which he was recruiting them as assistants.  The attempted extortion was an attempt to get $5,000 to ensure a purportedly existing “file” assertedly held by the Department of Children’s Services, concerning pre-marital sexual dealings between a young man and his fiancé, remained “lost”. 

[15]  The sentencing judge had sentenced Mr Marriner to three years imprisonment for that offence of attempted extortion, cumulative on concurrent sentences of two years imprisonment imposed on all the other offences.  This Court held that the effective sentence of five years imprisonment was clearly not manifestly excessive in R v Marriner [2006] QCA 32.  McPherson JA described the attempted extortion offence as a particularly heartless one, perpetrated by a much older man on a young relative who looked up to him.  His Honour’s judgment does not suggest any error in the three year sentence for that offence, or any error in regarding it as the most serious of the variety of offences committed by Mr Marriner.  That offender did not actually get paid any of the $5,000.

[16]  In R v Johnson and Edwards [1981] Qd R 440, to which neither counsel referred, those two appellants - who succeeded on their appeals against conviction - were police officers convicted of demanding $2,000 from their victim, whom they threatened to charge with an offence if the money were not paid.  They were sentenced after a trial to three and a half years imprisonment, and the judgment of Demack J[5] records that the applications for leave to appeal against those sentences were not proceeded with.  The threats in that case were essentially to instigate a false arrest and a malicious prosecution; and in this one, of police harassment rather than arrest, but of a similar nature.  Those (successful) appellants did not actually get any money from their victim, whereas Mr Cifuentes did.  They threatened only their victim, not the well-being of his children or parents.

[17]  In R v Smith, the appellant was a police officer convicted after a trial of the offence of extortion by a public officer, contrary to s 88 of the Criminal Code.  That offence carries a maximum penalty of three years imprisonment, whereas the offence of demanding property with threats committed by Mr Cifuentes has a maximum penalty of 14 years (as in R v Marriner and R v Johnson and Edwards).  Mr Smith had received, and allegedly retained, $9,000 paid by an insurance company in respect of the recovery of a stolen vehicle; he was sentenced to 18 months imprisonment, suspended after serving six months.  The much lower maximum penalty makes that a very different case, in which that offender received half the maximum penalty.

[18]  Finally, regarding police officers, the Court was referred to R v O'Mally, a matter involving a uniformed police officer who pleaded guilty to two offences of soliciting a bribe, contrary to s 200(1) of the Police Act 1990 (NSW).  The maximum penalty was seven years imprisonment.  He had solicited benefits for wrongly recording either the identity, or the offence, committed by the drivers of vehicles which he intercepted on a highway.  From one such driver he obtained the equivalent of $1,171.50 of earthmoving work, and from another a four wheel motorcycle.  He was sentenced to two years imprisonment with a non-parole period of 16 months, not disturbed on appeal.  The difference in the available maximum penalty, and the length of the minimum term, do not show this sentence is manifestly excessive.

Other varieties of extortion

[19]  Mr Kimmins referred the Court to various appeals in which offenders had threatened the disclosure of their victims’ sexual conduct.  In R v Renwick (unreported, Court of Criminal Appeal, CA No 244 of 1991, 14 November 1991) a matter that was probably a plea, that offender committed four offences of extortion in respect of two victims, one of whom paid him $1,000.  He had demanded in all four sums, $350, $1,000, $2,200, and $450; and his threats were to reveal alleged details of the sexual proclivities of the victim.  The offender was 33 years old with a criminal history described as “not extensive”, and his threats were said to have shown a high degree of determination, expressed in callous, very calculated, and crude terms.  The sentencing judge described that applicant as having made a business of extortion for some months and this Court upheld sentences of four years imprisonment, remarking that his offences represented great mischief to society and should be very firmly discouraged.  The like necessity for general deterrence applies in respect of police officers like Mr Cifuentes, whose threats only succeed if they persuade the victims to think badly of other police.

[20]  In R v Stratton [1992] QCA 102 that offender pleaded guilty to four counts of extortion committed against one victim, a businessman known to the offender, and to whose wife the offender had threatened to publish a videotape of the victim involved in a sexual encounter with an accomplice of the offender.  The offender and accomplice had gone to some considerable length to entrap the victim in an apparently innocuous and accidental encounter leading to sexual intercourse, videotaped, and had demanded at first $500,000, then $300,000, then $250,000, from the victim.  This Court imposed a sentence of seven years imprisonment, with no recommendation, reducing the sentence from nine.  That was a well organised offence perpetrated on a selected victim, as was that of Mr Cifuentes. 

[21]  In R v Gardner [1997] QCA 292,[6] that offender pleaded guilty to four counts of extortion, and this Court upheld a sentence of three years, suspended after serving one.  He had impersonated a police officer and threatened victims with arrest in public toilets, if they did not give him money.  One victim paid him $100 and the others promised some more; he was 23 years old when he offended, and he offended a second time when on bail.  His application was dismissed; he claimed to be protecting other people from potential voyeurs and paedophiles. 

[22]  A much lesser sentence was imposed in R v Amery [1999] QCA 236,[7] where that offender pleaded guilty to one offence of extortion and was sentenced to one year’s imprisonment.  She was a 33 year old prostitute, who threatened an ex-client, demanding $2,000 from him; the threat was that she would tell police he was a paedophile and burn some property of his.  The victim contacted police, the $2,000 was paid over, and she was arrested.  Hers seems to have been a disorganised if venomous offence, and the sentencing judge was particularly unimpressed with her credibility.  That sentence was held not manifestly excessive, and Thomas JA remarked that a higher sentence would have been justifiable.  It does not show that this one was too severe.  Those sentences imposed on offenders threatening others with revelation of their sexual behaviour do not assist Mr Cifuentes.

Threats to the public

[23]  Mr Kimmins took the Court to a number of matters in which attempted extortionists threatened indiscriminate injury to the public.  In R v Gardiner (unreported, Queensland Court of Criminal Appeal, CA No 159 of 1981, 16 September 1981) that applicant pleaded guilty to attempting to extort $50,000 by his threat to put poison in goods on display in some Coles premises.  He was 35 years old, a gambler who had become financially desperate, with no previous convictions, who had previously had an exemplary character.  The Court of Criminal Appeal rejected his application for leave to appeal, and Lucas J remarked that it was an offence of a very serious type, disclosing a detailed plan, worked out at extremely short notice.  In R v K J Johnson (unreported, Queensland Court of Criminal Appeal, CA No 317 of 1981, 3 March 1982) that applicant was sentenced to five years imprisonment after his plea of guilty to an offence of attempted extortion of $1 million, based on a threat to blow up the Toombul Shopping Centre.  The judgment of the Court of Criminal Appeal, rejecting his application for leave to appeal, noted that there was no bomb, and that applicant had no capacity to implement the threat to blow up the shopping centre, and that there was no evidence of a purposeful, well-directed criminal activity, but rather it was an amateurish attempt by an immature person.  Nevertheless, there was an attempt to obtain (a very large sum of) money by threats of exploding bombs in a public place.  The length of the sentence appears to have been affected by the size of the sum demanded; Mr Johnson was on probation at the time of his attempt at extortion.

[24]  In R v Stokes (unreported, Queensland Court of Criminal Appeal, CA No 179 of 1993, 22 November 1993) this Court upheld a sentence of five years imprisonment imposed after a trial, on an applicant who had threatened the manager of a National Australia Bank Branch.  The threat included reference to a bomb said to be planted behind the bank in a blue motor vehicle.  A device was found which was not a bomb, but which had been constructed to appear like one.  That applicant had demanded a bag of $50 and $100 notes, without specifying the total amount.  The bank manager who received the call had suffered a nervous breakdown and resigned, and the shopping centre had been evacuated for a number of hours. The applicant was 40 years old, with an extensive criminal history, mainly for offences of dishonesty, and was also an alcoholic.

Threats to associates

[25]  Finally, Mr Kimmins took the Court to some matters where attempts had been made to extort money from varieties of business associates.  In R v Coleman [1995] QCA 549[8] that applicant had pleaded guilty to an offence of extortion with a circumstance of aggravation, and been sentenced to imprisonment for five years, with parole release recommended after two.  He had been engaged by a bookmaker to collect $17,000 owing from a client of the bookmaker, and had threatened to blow up the debtor’s house and shoot the debtor.  The applicant was 41 years old, with a number of previous convictions for serious offences, including armed robbery; the Chief Justice remarked that that sort of behaviour was extremely serious, and behaviour where adequate deterrence had a special importance.  The application was refused.

[26]  In R v Shambrook [1997] QCA 356[9] this Court upheld a sentence of three years imposed after a trial on six counts of extortion, and one of wilful damage.  That applicant had been engaged for $2,000 to approach and threaten a businessman, with the object of having the businessman cause warrants of execution to be withdrawn against that applicant’s employer’s property.  That applicant had threatened to harm the health of the businessman, was 43 years of age, and had no prior convictions.  There had been some limited damage to property, in that the victim’s car tyres were slashed (the offence of wilful damage).  That sentence does not show that Mr Cifuentes’ was manifestly excessive.

[27]  In R v Campbell [1997] QCA 127[10] this Court dismissed an application for leave to appeal from a sentence of three years imprisonment suspended after four months with an operational period of five years.  Those sentences were imposed after a trial; that applicant had essentially helped a co-offender, who had instigated the theft of firearms from the victim, and who had then demanded $40,000 for the return of the stolen goods. There were threats to the victim’s family, should the demand not be satisfied.  That applicant’s evidence at his trial included that his co-offender claimed to be owed a considerable amount of money by the victim, which the co-offender had unsuccessfully attempted for some time to recover.  That explains the otherwise apparently light sentence.

[28]  Finally, in R v Drinkwater [2006] QCA 82,[11] that applicant’s sentence of six years imprisonment, imposed after a trial, was upheld by this Court.  He had demanded $50,000 from the victim, and was apparently acting for business associates of the victims in making that demand.  He had no criminal record and a good work history.  His conduct in committing that offence, and one of wilful damage and one of attempted arson, had included putting petrol on the victim’s car, and then some two months later throwing petrol bombs at the complainant’s house and pouring diesel over his fence.  He then demanded $55,000 and threatened to “go and see” the victim’s daughter.  Keane JA, giving the judgment of the Court, rejected the submission that six years imprisonment was at the very top of the range for extortion. His Honour drew counsel’s attention to the seven years imposed in R v Stratton, and to the sentences of five years imposed in R v Coleman, and in  R v Stokes. 

[29]  Those other sentences upheld or imposed by this Court show the head sentence imposed here was not manifestly excessive.  The sentences reviewed show that it is very difficult to avoid a prison sentence for extortion, and that the deterrent element is of particular importance.  Other matters tending to require the imposition of substantial sentences of imprisonment, reflected in those decisions, include:

• if the offender used violence to the victim, or damaged the victim’s property;
• if the offender threatened personal violence to the victim;
• the length of time over which the demands persisted;
• the extent of planning and organisation involved in the offence;
• the sum of money demanded from the victim;
• whether, as in this case, the offender abused a position of power or trust;
• whether the offender actually extracted money from the victim;
• whether the offender threatened to cause harm to other, quite innocent, people; and
• whether the offender preyed upon the habits or proclivities of others.

[30]  Matters in mitigation include, obviously enough, whether the offender has prior convictions, the extent of co-operation with investigating police and the administration of justice, other conduct indicative of genuine remorse or its actual absence, and the like.  In this matter the learned judge was satisfied there was no actual remorse, but more regret at being apprehended, and noted that the reason full restitution had been made was simply because Mr Cifuentes was apprehended so soon after being given the $8,000.  Those observations were not challenged, and there were aggravating matters. 

[31]  Those included that Mr Cifuentes’ offences involved an abuse of his position as a police officer, and a threat to exercise unlawfully and corruptly in the future his police power and authority, and a representation to the victim that Mr Cifuentes was in a conspiracy with at least one other senior officer to extort money from the victim.  He threatened that the victim’s children would be removed from his care because of action by the State.  Those were threats to cause potentially serious harm to his children.  The sentence imposed was within the appropriate range, and the application should be dismissed.

[32] HOLMES JA: I agree with Jerrard JA, for the reasons he has given, that the application for leave to appeal against sentence should be dismissed.

[33] HELMAN J: I agree with the order proposed by Jerrard JA and with his Honour’s reasons.