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R v Samarasekera[2021] QCA 239

SUPREME COURT OF QUEENSLAND

CITATION:

R v Samarasekera [2021] QCA 239

PARTIES:

R

v

SAMARASEKERA, Rohana Lincoln

(applicant)

FILE NO/S:

CA No 66 of 2021

DC No 1790 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 29 March 2021 (Clare SC DCJ)

DELIVERED ON:

9 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2021

JUDGES:

Mullins JA and Boddice and Crow JJ

ORDER:

The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was Director of Engineering at a regional council – where the applicant, using his position, ensured the council entered into a contract with an associate’s business – where the applicant, over approximately three years received, via his wife, secret commissions totally approximately $120,000 – where the applicant was convicted on his own plea of guilty of 79 counts of receipt of secret commission by an agent – where the applicant was sentenced to five years imprisonment to be suspended after having served 20 months, with an operational period of five years – where the applicant applies for leave to appeal against his sentence on the grounds that it is manifestly excessive – whether the sentence ought to have been wholly suspended, or if a suspension was warranted, whether a lesser term of imprisonment prior to suspension should have been imposed instead

R v Gmeinder [2001] QCA 354, distinguished

R v Mackay [2019] QCA 97, distinguished

R v Nuttall [2011] 1 Qd R 270; [2010] QCA 64, distinguished

R v Pham (2015) 256 CLR 550; [2015] HCA 39, followed

R v Wulff; R v Oxenbridge; R v Myers; R v Walker [2019] QCA 183, distinguished

COUNSEL:

The applicant appeared on his own behalf

D Nardone for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MULLINS JA:  I agree with Crow J.
  2. [2]
    BODDICE J:  I agree with Crow J.
  3. [3]
    CROW J:  On 29 March 2021, the applicant pled guilty to 79 counts of receipt of a secret commission by an agent.[1]  He was sentenced to five years’ imprisonment, suspended after having served 20 months and with an operational period of five years.  The applicant seeks leave to appeal, not the head sentence of five years’ imprisonment, but rather the 20-month period of imprisonment prior to suspension.  The sole basis of the applicant’s appeal is that the sentence imposed was manifestly excessive.
  4. [4]
    The crime of receipt of a secret commission by an agent carries with it a maximum sentence of seven years’ imprisonment.[2]
  5. [5]
    The applicant was the Director of Engineering at the Etheridge Shire Council (“the Council”) and responsible for all aspects of the engineering services for the Council, including the appointment of contractors, the calling of the tenders and the appointment, and allocation of work.  From September 2013 to September 2016, the Council engaged with an engineering company (“the Company”) for the provision of a contracted engineer to manage road works and flood restoration work for the Council.  This contract was awarded by the applicant.
  6. [6]
    The applicant was a friend and business associate of the director of the Company (“the Director”).  Over a period of approximately three years, the Council paid the Company $1,001,900.59.
  7. [7]
    Over a period from 7 October 2013 until 30 November 2016, the applicant received 79 payments of sums varying between $896 and $1,732 from the Director in exchange for organising the contract.  The applicant corruptly obtained the benefit of $120,604.13 received through payments directed by the Company to the bank account of the applicant’s wife.
  8. [8]
    An important aspect of the agreed facts was that the payments from 24 August 2016, to 30 November 2016, constituted by count 74 to 79, were made at a time when the applicant was aware that the Crime and Corruption Commission (CCC) was investigating his conduct and he took steps to avoid detection.  Intercepted telephone calls revealed that on 21 August 2016 and 5 September 2016 the applicant and the other persons involved in the fraud, the Director and the applicant’s wife, engaged in conversations designed to concoct a story to conceal the fraudulent conduct.  The applicant declined to participate in a police interview.
  9. [9]
    In sentencing the applicant, the primary judge took into account the applicant’s relevant antecedents, namely the applicant’s:
  • advanced age (74 years old);
  • state of health;
  • work history, this is his former career in policing and his career in engineering;
  • residence in Australia for 50 years;
  • family circumstances; and
  • purported motivation to “ensure” the applicant’s young son was provided for in the applicant’s “old age”.
  1. [10]
    In respect of the applicant’s state of health, the primary judge said: “At 74 you have some issues of ageing but you seem to be in reasonable health for you age.  You are a diabetic.  There is a family history of heart disease and you, in fact, had open heart surgery in 2007 which is six years before the offending started…you have the referral for eye surgery.”  The primary judge noted that applicant was concerned about the state of his heart, but that recent tests had “not shown any change”.
  2. [11]
    The primary judge recorded that the applicant had no prior criminal history and had not offended in the four years since his arrest.
  3. [12]
    The applicant’s written submissions on appeal[3] highlight his advanced age and his state of health.[4]  In respect of his heart condition, his diabetic condition and his eye condition, these matters were expressly referred to by the primary judge in her sentencing remarks.
  4. [13]
    A submission advanced by the applicant during the hearing in this Court, which was not raised on sentence, was that the applicant had saved the Council a large amount of money as the Company’s engineers were charged at $120 per hour as opposed to the “commercial rate” of $195 to $200 per hour.[5]  The submission that the contract between the Council and the Company would have saved the Council a large amount of money is correct and government employees who make cost effective decisions ought to be commended.  However, that can never be a justification for the deceit involved in taking a secret commission and such a submission reveals a lack of insight and remorse.
  5. [14]
    In his Addendum Written Submissions,[6] the applicant sought to demonstrate that the sentence imposed upon him was excessive by reference to a number comparable cases.  These were the same cases the primary judge was referred to by experienced defence counsel.
  6. [15]
    In R v Pham,[7] French CJ, Keane and Nettle JJ said:

[28] Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached…it is appropriate to re-emphasise the following:

  1. (1)
    Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

  1. (7)
    Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

(Citations omitted.)

  1. [16]
    In the present case, as discussed above, the primary judge had regard to all relevant sentencing factors.  However, it is necessary to have reference to those factors in order to determine whether this court is “driven” to the conclusion that there must have been some misapplication of principle.  The applicant’s argument distils to an argument that by having reference to the four identified cases said to be comparable and having regard to the relevant sentencing factors that this court is driven to the conclusion there was a misapplication of principle.  The immediate difficulty facing the applicant is that the cases relied upon, that is R v Mackay,[8] R v Gmeinder,[9] R v Wulff,[10] and R v Nuttall,[11] cannot be regarded as comparable cases.
  2. [17]
    In R v Mackay,[12] the offending was less serious.  Mackay’s position as an official in the Public Trustee of Queensland, is not dissimilar to the applicant’s position as a Director of Engineering at a regional Council and both Mackay and the applicant took steps to conceal their offending behaviour.  However, in R v Mackay there were three counts as opposed to 79 counts.  The benefit obtained was approximately $13,000 as opposed to $120,000.  The transaction value was approximately $251,000, as opposed to a transaction value of more than $1 million.  Despite the two similarities, the offending in Mackay was much less serious than the applicant’s and accordingly, it is not a comparable case.
  3. [18]
    Gmeinder[13] has a similar number of counts to the present case (72 counts in Gmeinder).  However, there were also significant differences.  Gmeinder was aged 23 to 25 during his offending, and the benefit obtained by Gmeinder was $30,000.  Gmeinder made full admissions and provided a statement under s 13A of the Penalties and Sentences Act 1992 (Qld).  The relevant sentencing factors were therefore significantly different to the applicant’s case, with a lesser degree of criminality and a higher degree of cooperation.  Therefore, the sentence of some three years suspended after serving six months imposed in Gmeinder is of no assistance to the applicant.
  4. [19]
    In R v Wulff,[14] the offending was worse, as the benefit obtained by Wulff was some $230,000 (as opposed to $120,000) and Wulff was in the higher position as the CEO of Ipswich City Council (as opposed Director of Engineering).  Both Wulff and the applicant had no criminal history.  There are, however, two significant differences, namely that there was a risk of Wulff being deported was taken into consideration, and Wulff, like the defendant in Gmeinder,[15] had provided a statement under s 13A.[16]  The sentence in Wulff was four years and six months, suspended after 20 months.  The most significant, difference between Wulff and the present case is the cooperation of Wulff in the provision of the s 13A statement.  Whilst sentencing is not a mathematical exercise,[17] it is common for offenders who provide cooperation under either s 13A or s 13B of the Penalties and Sentences Act 1992 (Qld) to be given a discount in their sentence of somewhere between 20 per cent and 50 per cent.[18]
  5. [20]
    Finally, I turn to R v Nuttall.[19]  There are many differences between Nuttall and the present case.  Importantly, Nuttall was a trial.  Nuttall was sentenced to seven years’ imprisonment and made eligible for parole after serving 2.5 years.  Although there were only 36 counts of receipt of secret commissions, the benefits exceeded $361,000.  Importantly, Nuttall held a much higher position as a minister of the Crown.  Nuttall cannot be said to be a comparable case to the applicants.
  6. [21]
    As Thomas JA said in R v Gmeinder:[20]

“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.” 

  1. [22]
    That passage has been adopted in both R v Mackay[21] and R v Wulff.[22]
  2. [23]
    In my view, with reference to the relevant sentencing factors, including the nature and extent of the applicant’s offending, his antecedents, in particular his age and ill health, it cannot be concluded that there must have been some misapprehension of principle in the sentencing.  The application for leave to appeal ought to be dismissed.

Footnotes

[1]Criminal Code (Qld) s 442B(a).

[2]Criminal Code (Qld) s 442B(a).

[3]Filed 6 September 2021.

[4]Applicant’s written submissions, paragraph 11(a), (b), (c), (d), (e), (f).

[5]This is contrary to the agreed fact at sentence that the “market rate” was $160.

[6]Filed 6 October 2021.

[7](2015) 256 CLR 550 at 559 [28].

[8][2019] QCA 97.

[9][2001] QCA 354.

[10]R v Wulff; R v Oxenbridge; R v Myers; R v Walker [2019] QCA 183.

[11][2010] QCA 64.

[12][2019] QCA 97.

[13][2001] QCA 354.

[14]R v Wulff; R v Oxenbridge; R v Myers; R v Walker [2019] QCA 183.

[15][2001] QCA 354.

[16]Penalties and Sentences Act 1992 (Qld) s 13A.

[17]Barbaro v The Queen (2014) 253 CLR 58 at 72 [34].

[18]R v Webber (2000) 114 A Crim R 381 at [4] and [16]; R v SBI [2009] QCA 73 at [6]; R v SBS [2010] QCA 108 at [19]; SZ v The Queen (2007) 168 A Crim R 249 at 258; R v El Hani [2004] NSWCCA 162.

[19][2010] QCA 64.

[20][2001] QCA 354 at p 4.

[21][2019] QCA 97.

[22]R v Wulff; R v Oxenbrdige; R v Myers; R v Walker [2019] QCA 183.

Close

Editorial Notes

  • Published Case Name:

    R v Samarasekera

  • Shortened Case Name:

    R v Samarasekera

  • MNC:

    [2021] QCA 239

  • Court:

    QCA

  • Judge(s):

    Mullins JA, Boddice J, Crow J

  • Date:

    09 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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