SUPREME COURT OF QUEENSLAND 

1. FRASER JA: I agree with the reasons given by Fryberg J for his Honour's conclusion that the sentence imposed by the sentencing judge was not manifestly excessive.  For those reasons I would refuse the application.  I propose to give some brief reasons dealing with some procedural matters which are also discussed in his Honour’s reasons.

2. The submissions of the parties at the sentence hearing in the District Court concerning all aspects of sentence were heard in camera.  The court remained closed whilst the sentencing judge then gave reasons for the sentence, stated the sentence that his Honour would have imposed apart from the reduction under s 13A (“the indicative sentence"), and then imposed the sentence.  His Honour then opened the Court and imposed the sentence again.

3. That procedure is not reconcilable with the Penalties and Sentences Act 1992 (Qld). Subsection 13A(7) of that Act requires that the indicative sentence be expressed in closed court after the imposition of the sentence.  Further, for the reasons given by Fryberg J, s 13A(5) is open to the construction that the court is to be closed only during the making of such oral submissions and the giving of such evidence as concerns the reduction of the sentence on account of the offender having undertaken to co-operate with law enforcement agencies.  I would add that, whilst s 13A qualifies the usual obligation to conduct proceedings in open court, it does not in terms provide that s 10 (which requires that reasons for the sentence imposed upon the offender must be stated in open court) and s 13 (which requires a statement concerning the effect of a guilty plea to be made in open court) have no application at all in a proceeding where s 13A is invoked.

4. Construing s 13A in the manner suggested by Fryberg J also conforms to the general policy of the law that the reasons for sentences ordinarily should be accessible not only to the parties and appeal courts but also to victims and the public, ^[1] which is itself one aspect of the law’s strong policy in favour of open justice.  Common law and statutory exceptions exist in some well recognised areas, including in relation to informers,^[2] but the general policy is opposed to an unduly broad application of such exceptions.

5. Because no point was taken in this application about the procedure adopted by the sentencing judge it is not necessary to pursue those matters, but for the reasons I have given I would emphasise that this decision should not be regarded as endorsing that procedure.

6. It is appropriate also to mention that, although s 13A does not apply of its own force at the hearing of an application for leave to appeal in this Court, the Court may exercise its power to conduct part of the proceedings in camera and it generally would restrict the extent of publication of reasons for judgment in order to maintain confidentiality in the amount of any reduction in sentence under s 13A.^[3]  In this matter, the submissions suggested that confidentiality in the indicative sentence may already have been lost: perhaps for that reason, although the Court indicated its preparedness to consider any particular submission in this respect, neither party sought to maintain confidentiality in the indicative sentence.

7. FRYBERG J: On 29 November 2007 Mr Gilbert pleaded guilty to one count of stealing as a servant.  On 10 December 2007, Wall DCJ sentenced him to imprisonment for one year and four months, suspended after eight months for an operational period of two years.  In this application he seeks leave to appeal against that sentence.

The circumstances of the offence^[4]

8. Mr Gilbert was at the relevant time, employed as a duty manager at Fisherman’s Wharf Tavern on the Gold Coast. His superior and manager of the tavern at the time was Mr Gould, the co-offender and principal in the commission of the offence. He and Mr Gilbert stole $200,000 from their employer, the operator of the tavern, and attempted to cover up the commission of the offence by faking an armed robbery of the premises. Mr Gould was the principal offender and organiser of the offence and Mr Gilbert was to receive $3,000 for his part in the offence. The $200,000 has not been recovered. On 14 January 2007, Mr Gould reported to police that he had been robbed at gun point whilst working at the tavern. He stated that he had been assaulted and locked in a safe room. When he was released from the room at 4.30 am he discovered that $200,000 had been stolen. 

9. A protracted police investigation followed. Mr Gilbert in his initial statement to police denied any knowledge of the robbery. As a result of information received, he was reinterviewed by police on 25 April 2007. In that interview he made some admissions to his part in the offences and implicated Mr Gould. Mr Gilbert stated that Mr Gould planned the offence. He stated that everything he did was at Mr Gould’s instruction. He claimed Mr Gould first approached him less than a week before the offence. On 13 January 2007, at around 10.00 am Mr Gould told him the robbery was going to take place that night. Mr Gould said that other people had pulled out and offered Mr Gilbert “a couple of grand”. Mr Gilbert asked Mr Gould what was involved and the latter replied “Mate, all you’ve got to do is just walk me in, lock me up and walk out.” Mr Gilbert went home sick on Mr Gould’s instruction on the evening of 13 January 2007 and returned to the premises at around 12.30 am on 14 January 2007. Mr Gould was present. They walked into the office of the premises. Mr Gilbert noticed that the office had already been disturbed to look as if a robbery had taken place. Mr Gilbert had been told by Mr Gould that the money would have been taken from the premises by the time he got there. Mr Gould gave Mr Gilbert his keys and mobile phone. Mr Gilbert struck Mr Gould in the head a number of times with a ladle, to give the appearance that he had been struck by the robbers. He locked Mr Gould in the safe room, locked the door and left the premises. He disposed of the keys and mobile phone by throwing them in the Broadwater, from where they were later retrieved by police divers. In an effort to conceal his offending behaviour, he disposed of his clothing and attended a nearby nightclub. He stated that his motive for committing the offence was that Mr Gould offered him “a couple of grand” which he never ended up receiving and he had debts to be paid back at the time. He revealed Mr Gould’s likely whereabouts in Victoria.  A warrant was then issued and Mr Gould was arrested and extradited to Queensland.

10. On 26 May 2007 Mr Gilbert provided an addendum statement to police. He stated that he did not advise police of his full role in the offences in his earlier interview with them. He had denied taking a bag from the premises. In his addendum statement Mr Gilbert said that he saw a bag on the floor of the office when he went in there with Mr Gould. Mr Gould told him to take the bag and throw it, and that he did not want to know where it went. Mr Gilbert threw the bag away in a park under a tree. He denied knowing what was in the bag, saying he never looked in it. He stated that it was really heavy and he formed the view it was too heavy to be bank notes and that it could have contained bricks of change. He claimed he did not look inside it. Subsequently Mr Gould demanded its return and became angry when told what had happened to it.

11. The judge was not obliged to accept Mr Gilbert's claims that he believed the money had already been removed from the tavern before his arrival, that he did not look in the bag which he took from the tavern and that he dumped that bag in a park. In the circumstances it was open to him to find that this story was inherently improbable and to indicate that he would not act on it, at least in the absence of evidence. However with the encouragement of the prosecutor he did not question Mr Gilbert's allegations, despite some initial scepticism. We must proceed on the same basis.

12. Mr Gould was plainly the ringleader on the version given by Mr Gilbert. He was aged 35 at the time of the offence. He had a criminal history which included 24 counts of embezzlement and three of larceny as a clerk in 1993 in New South Wales, and one count of stealing as a servant in 2002 in Queensland.  He was lightly punished for the earlier offences but in 2004 was sentenced to imprisonment for 3½ years, suspended after having served nine months for an operational period of four years, for the Queensland offence.

Background of the offender

13. Mr Gilbert was a single man aged 26 at the time of the offence. He had no prior criminal history and a good work history. A number of unusually persuasive references supported his good character. It may be accepted that his behaviour was an aberration. There was evidence of genuine remorse.

Co-operation with the administration of justice

14. On the morning of the theft, police interviewed Mr Gilbert and he signed a four page statement. It contained a false alibi and disclosed nothing about what had really happened. Had he immediately told the truth, it is unlikely that extradition proceedings against Mr Gould would have been necessary. Police reinterviewed him over three months later, with the result described above. He knew that a fellow employee had gone to the police and was expecting them. Even then he did not reveal the whole of what he now says is the truth. That did not come until a third interview a month later. The case against him was based substantially on the admissions made in the second and third interviews. He was arrested in April and in June 2007 his solicitors wrote to the Director of Public Prosecutions requesting that the matter be dealt with by way of an ex officio indictment. He pleaded guilty on the presentation of that indictment on 29 November 2007.

Section 13A of the Penalties and Sentences Act 1992

15. Immediately after the allocutus was administered, the Crown prosecutor handed some documents to the judge. That material consisted of an undertaking by Mr Gilbert pursuant to s 13A of the Penalties and Sentences Act 1992 and submissions by the parties under that section.  The undertaking was dated 29 November 2007, the day of the hearing.  By it Mr Gilbert undertook to cooperate with State law enforcement agencies in any proceedings which related to offences arising from information provided by him to those agencies, such cooperation to extend to attending court and giving evidence as required by a prosecuting authority.  Mr Gilbert's three statements and the transcript of his interview in April 2007 were attached to the undertaking.

16. Section 13A provides:

“13A Cooperation with law enforcement authorities to be taken into account

(1)This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding.

(2) Before the sentencing proceeding starts, a party to the proceeding--

(a)must advise the relevant officer –

(i)that the offender has undertaken to cooperate with law enforcement agencies; and

(ii)that written or oral submissions or evidence will be made or brought before the court relevant on that account to the reduction of sentence; and

(b)may give to the relevant officer copies of any proposed written submissions mentioned in paragraph (a)(ii).

(3)After the offender is invited to address the court –

(a)the offender's written undertaking to cooperate with law enforcement agencies must be handed up to the court; and

(b)any party may hand up to the court written submissions relevant to the reduction of sentence.

(4)The undertaking must be in an unsealed envelope addressed to the sentencing judge or magistrate.

(5)If oral submissions are to be made to, or evidence is to be brought before, the court relevant to the reduction of sentence, the court must be closed for that purpose.

(6)The penalty imposed on the offender must be stated in open court.

(7)After the imposition of the penalty, the sentencing judge or magistrate must -

(a)close the court; and

(b)state in closed court -

(i)that the sentence is being reduced under this section; and

(ii)the sentence it would otherwise have imposed; and

(c)cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court, including on an application to reopen the sentencing proceedings under section 188(2) -

(i)the written undertaking;

(ii)a record of evidence or submissions made relevant to the reduction of sentence and the sentencing remarks made under paragraph (b).

…

(11)In this section -

relevant officer means -

(a)for a proceeding before the Supreme or District Court--the sentencing judge's associate; or

(b)…”.

17. In handing Mr Gilbert's undertaking and the parties’ submissions to the judge, the prosecutor was acting in accordance with s 13A(3).  The opening words of that subsection, “After the offender is invited to address the court”, refer to the requirement contained in s 648 of the Criminal Code for the proper officer of the court to call upon the accused, a process commonly known as administering the allocutus, which is carried out by addressing the accused in the terms set out in r 51 of the Criminal Practice Rules 1999.  The use of those opening words is based on the misconception that the allocutus amounts to an invitation to make a speech.  It does not.  Historically its purpose was to give a person convicted of treason or felony the opportunity of moving in arrest of judgment on a point of law.^[5]  Under the Code it serves the same purpose: see s 649; and must be administered in all indictable cases.^[6]  Section 648 does not require the accused to be given the chance to say what his sentence should be or not be, but rather to say why sentence should not be passed upon him.

18. The misconception is understandable and widespread. “Allocutus” is a label in legal Latin, about as useful today as the process to which it refers. Section 649 has fallen into disuse. I doubt its continued utility. On the other hand, the allocutus is administered whenever there is a plea or verdict of guilty; and the judge never follows it with the question to defence counsel, “Do you move?” Almost invariably it is followed by submissions on sentence. Its English-language counterpart, “allocution”, is defined by the Oxford English Dictionary to mean “The action of addressing or exhorting; hortatory or authoritative address.”  At least one North American source gives it a dual meaning:

“The formal inquiry by a judge of an accused person, convicted of a crime, as to whether the person has any legal cause to show why judgment should not be pronounced against him or her or as to whether the person has anything to say to the court before being sentenced.”^[7]

Perhaps the statutory imprimatur of s 13A(3) will lead to the same result in Queensland.

19. Wall DCJ then closed the court. His Honour then adjourned and saw counsel in chambers. It is not apparent from the record what transpired, but upon resumption, his Honour ordered the court closed. All further proceedings except for the final pronouncement of sentence were in closed court. His Honour gave no reasons for closing the court at that point. The transcript of proceedings discloses nothing abnormal; the matter proceeded conventionally except for references to the material which had been handed to the judge and to the matters referred to in that material.

20. It may be inferred that his Honour intended to act under s 13A(5).  That sub-section provides arguable support for what was done.  It refers in general terms to oral submissions and to evidence.  However in the context, those references must be taken to relate back to s 13A(2)(a)(ii), which refers to submissions or evidence “relevant on that account to the reduction of sentence” - in other words relevant on account of the fact that the offender has undertaken to cooperate with law enforcement agencies.  Put shortly, evidence and submissions relating to matters arising under s 13A must be made to or brought before a closed court, but evidence and submissions not so related are not subject to the same imperative.

21. Absent a requirement for the court to be closed, the proceedings should be conducted in open court. That is a fundamental aspect of our system of justice.

22. On the hearing of the application in this Court, counsel were asked whether it was necessary to close the court. Neither party suggested that it was. No non-publication order had been made in respect of the proceedings.  The court remained open.

The value of the undertaking

23. This was a case where Mr Gilbert’s undertaking to cooperate and to give evidence was of considerable value. His evidence provides the basis for the charge against Mr Gould. This is hardly likely to make his time in prison any easier, although it cannot be assumed that (as is the position in some other cases) it places his life at risk. The Crown prosecutor conceded before Wall DCJ that Mr Gilbert should be given a very substantial discount for these reasons.

The judge's reasons for the sentence imposed

24. It is not suggested that his Honour failed to have regard to any relevant matter. He referred at some length to Mr Gilbert's interview with police in April and at less length to the other evidence before him. However he rejected a submission made by both the Crown and the defence that Mr Gilbert's sentence should be wholly suspended. He thought that such a reduction would amount to “an affront to community standards as a sentencing response”. He calculated the sentence in the following manner:

“In my view an appropriate starting point in your case would be a sentence of imprisonment for four years.  I think that an appropriate discount for your plea of guilty to an ex officio indictment and having regard to the personal circumstances in your favour would be one third.  I cannot accept the extent of the discount contended for this morning by Mr Potts.  One third of 48 months, which is four years, is 16 months.  Now, that leaves a balance of 32 months.  I would propose that that amount of 32 months be reduced by a further one third of 48 months of your section 13A cooperation.  That is a further reduction of 16 months leaving a balance of 16 months.  That amounts, in fact, to 50 per cent of the sentence remaining after the initial reduction of one third, and 16 months amounts to one year and four months.

I sentence you to imprisonment for one year and four months but I suspend that sentence after you have served eight months, and the operational period will be two years.  If you commit an offence punishable by imprisonment within the next two years you will be liable to serve the balance of eight months.

I indicate that the sentence, but for your cooperation, would have been 32 months; that is two years and eight months, suspended after 16 months; that is after one year and four months, for two years.”

The submissions

25. Counsel for Mr Gilbert conceded that his Honour's starting point, four years imprisonment, was within the range, albeit at the top of the range. He submitted that even apart from s 13A the mitigating factors in the present case pointed to a more substantial reduction than normal.  He cited R v Adams; ex parte Attorney General^[8] and R v Gladowski^[9].  He referred to Mr Gilbert's prior good character and lack of criminal history, his employment record, his cooperation with the administration of justice in making a full confession and naming and locating the principal offender, his timely plea of guilty to an ex officio indictment, his remorse for what he had done and his prospects for a good future.  He submitted that these factors would lead to a sentence of three to four years imprisonment suspended after nine to 12 months.  On top of that was the substantial discount to which he was entitled by reason of s 13A.  In the result he submitted that the sentence should be three years imprisonment wholly suspended for an operational period of five years.

26. Counsel for the Crown submitted that the judge’s starting point reflected the gross breach of trust involved in the offending. She referred to Mr Gilbert's delay in making admissions as limiting his cooperation in the administration of justice. She submitted that the sentence was supported by R v Bulloch^[10], R v Gourley^[11] and R v Hancox^[12].  She supported the sentence imposed.

27. The sentence proposed by counsel for Mr Gilbert involved a higher head sentence than was imposed at first instance. Counsel informed the court that his instructions were to proceed with the application regardless of the risk of an increase to the head sentence in the event that the court was minded to the re-exercise of discretion.

The sentence

28. There is no universally correct method of approach to formulating a sentence in cases to which s 13A applies (or in other cases, for that matter).  There is no mathematical formula which can produce an answer.  It will often be convenient to adopt the methodology proposed by counsel for Mr Gilbert.  It can be useful to begin by approaching the case independently of the section, and then applying a reduction of sentence to reflect the value of the undertaking under the section.  That facilitates compliance with s 13A(7).

29. The concession that a starting point of four years was within the range was in my judgment rightly made. Even if, in the circumstances of this case it was at the top of the range (as to which I express no opinion), that cannot mean that its use by the judge as a starting point was an error.

30. The next step in the process suggested was to consider factors in mitigation of penalty apart from s 13A. Conventionally such factors are reflected either in early parole or a partly suspended sentence. The former would tend to be favoured in the case of a young person whose conduct suggested that need for continuing supervision. In the present case there was little evidence suggesting such need, and in this court counsel for Mr Gilbert made no criticism of the decision to mitigate by means of a suspended sentence. He submitted that apart from the statutory undertaking, suspension after nine to 12 months was appropriate. I do not accept that submission. It is true that, standing alone, an early request for an ex officio indictment with the announced intention of pleading guilty, coupled with the other factors referred to by counsel, could well justify suspension earlier than one-third of the way through the head sentence; but those matters did not stand alone. Mr Gilbert's cooperation was delayed. At first he lied to police and before the lie was corrected, Mr Gould had gone to Victoria.  Suspension of a four-year sentence after 16 months would not in these circumstances have resulted in a sentence which was manifestly excessive.  Moreover the circumstances certainly did not mandate both a reduction in the head sentence and an early suspension.

31. That was not the way his Honour approached the matter, nor was such a sentence the hypothetical one which his Honour stated under the section. His Honour chose to reflect the factors in mitigation by reducing the hypothetical head sentence as well as allowing a partial suspension. That approach might be unconventional, but it is not necessarily wrong.

32. To reflect the value of the statutory undertaking his Honour then halved both the hypothetical head sentence and the period to be served, thus deriving the sentence actually imposed. Reducing both the hypothetical head sentence and the period to be served is a sound way of recognising a valuable undertaking. While conventionally other mitigating factors are usually reflected in the so-called “bottom end” of the sentence (at least where the offence in question is not a serious violent offence), an undertaking under s 13A will often merit a reduction of both the head sentence and the period actually to be served (if any).

33. Unfortunately, the effect of the reduction in the present case, coupled with the initial reduction of the head sentence of 16 months, meant that the final head sentence of 16 months was so low that not even counsel for Mr Gilbert attempted to support it. In my judgment, even allowing for the fact that the starting point, four years imprisonment, was at the top end of the range of head sentences, it is not possible to support a head sentence of less than two years imprisonment after taking the undertaking into account. Were I to favour resentencing, that is the head sentence which I would impose. Mr Gilbert can hardly complain of this error; it is substantially in his favour.

34. Against that background I come to the question whether a sentence requiring actual imprisonment for eight months adequately recognises the value of Mr Gilbert's undertaking, for it is that order against which the application is directed. Again, as with all sentencing, there is a range over which reasonable minds may differ. It is unnecessary to decide whether it would have been open to the judge wholly to suspend the sentence. In my judgment, it cannot be said that suspension after eight months of head sentence of 16 months was manifestly excessive. Eight months is proportionate to the lowest head sentence which ought to have been imposed (two years) and it requires service of only half of the period which would have had to be served had the undertaking not been given. It does not lead me to conclude that the discretion must have miscarried.

Order

35. The application should be dismissed.

36. LYONS J:   I agree with Fryberg J that the sentencing discretion has not miscarried and accordingly I also consider that the application should be dismissed.