Anthony Simon Retsos v Regina

Count 2 Imprisonment for 1 year commencing on 5 January 2006 and expiring on 4 January 2007, together with a fine of $10,000.

Count 4 As for Count 2 4 The three concurrent sentences of imprisonment were ordered to be served by way of periodic detention. 5 The overall effect of these penalties was to pass upon the applicant sentences of imprisonment totalling 3 years, all of the sentences to be served by way of periodic detention; and to impose as well fines totalling $80,000. 6 The applicant now seeks leave to appeal against the asserted severity of those penalties. The applicant relies upon the following grounds: "1. The sentencing Judge erred in imposing an effective fine of $80,000. 2. The sentence imposed on the applicant does not comply with the parity principle having regard to the sentences imposed upon Messrs. Smyrnis and Limberis. 3. The sentencing Judge erred in failing to impose a non-parole period on the applicant."

The Material Facts 7 These are set out conveniently in an Agreed Statement of Facts which formed part of a collection of materials that were admitted without objection into evidence as Exhibit A in the sentence proceedings. " Agreed Statement of Facts 1. In October 2001 the Independent Commission Against Corruption (ICAC) commenced an inquiry into Rockdale City Council and the conduct of its Councillors in soliciting or attempting to solicit corrupt payments from developer with development applications lodged or to be lodged with the Council. 2. The co-offender Andrew Smyrnis was elected a Councillor of Rockdale City Council on 11th September 1999. The offender Anthony Retsos was a director of a formwork company Satela Concrete and Formwork and a friend of Smyrnis. Count 1 - Corruptly Solicit a Benefit 3. On 2nd November 2000, developer Antonio Saglimbeni lodged a Development Application in the name of his company, Landcorp Pty Ltd, for a 3-level residential flat building containing 15 residential units above two basement levels containing parking for 24 cars at 29-35 King Edward Street, Rockdale. 4. The Environmental Planning Instrument applying to the land was the Rockdale Planning Scheme Ordinance 1973. Part of the subject land (no. 29-31) was zoned Residential 2(a) and the balance (no. 33-35) was zoned Residential 2(c2). The latter permitted residential flat buildings with development consent; the former prohibited residential flat buildings. For this reason, Saglimbeni lodged a rezoning application at the same time as the Development Application, seeking to rezone the land at no. 29-31 to Residential 2(c2). 5. Saglimbeni then attempted to directly contact members of Rockdale City Council to gather support. This included Smyrnis at his office in Glebe. Saglimbeni learnt that the offender, who had done some concreting work for him at some stage, was a friend of Smyrnis so Saglimbeni approached the offender to see if he could help him to contact Smyrnis. The offender did so and subsequently reported to Saglimbeni that Smyrnis was in favour of the application. However, when the application came before Council in June 2001, the Council moved to defer the application pending receipt of an up-to-date Australian Noise Exposure Forecast map due to potentially unacceptable aircraft noise. 6. Some 3-4 months later, the offender contacted Saglimbeni and advised him that he could get the matter back before Rockdale Council. Thereafter, on 17 October 2001, an approach was made by the offender to Saglimbeni on behalf of Smyrnis soliciting a bribe of $240,000 to get Saglimbeni's application successfully through Council. The request for a total of $240,000 was later increased to $250,000. Saglimbeni played along with the offender, without any intention of ever paying the bribe. Saglimbeni reported his contact with the offender to Rockdale Councillor Kent Johns and the matter was reported to the ICAC. Saglimbeni gave evidence to ICAC and made a statement in relation to this count. ……………………….. 7. Smyrnis agreed with a fellow Rockdale Councillor to pay that Councillor $70,000 in return for supporting Saglimbeni's application and obtaining the support of other Councillors. Counts 2 & 3 (and Form 1 matters) 8. The offender, Andreas Smyrnis and Antonio Saglimbeni were all called to give evidence before ICAC in respect of Rockdale City Council and allegations of corruption. 9. The offender gave evidence before ICAC on 28th March 2002 where he denied any involvement in the solicitation of corrupt money for the King Edward Street development. He was re-called before ICAC on 1st May 2002 where he again denied his involvement. He was then re-called to give evidence on 6th May 2002 where he gave truthful evidence and admitted the conduct set out above. Count 2 - Give false evidence before ICAC 11. On 28th March 2002 the offender agreed that he had read the summons to appear at ICAC, which set out the scope of the ICAC inquiry. He was asked about his possession of information about corrupt payments to Rockdale City Councillors, and in particular he was asked: Question: No information to offer to the Commission whatsoever about any attempts to obtain corrupt payments by Rockdale City Councillors? Answer: No sir 12. On this date the offender gave a further twenty-two false answers to questions relating to the corrupt solicitation of money and the development application at King Edward Street (contained with the Form 1 schedule). Count 3 - Give false evidence before ICAC 13. On 1st May 2002 the offender was asked about the content of the intercepted conversation he had with Saglimbeni: "Question: Mr. Retsos, the conversations you had with Mr. Saglimbeni Answer: Yes. Question: ---weren't in relation to you getting a consultancy were they Answer: They were sir Question: They were in relation to you approaching him for a bribe that was to go in part to Mr. Smyrnis wasn't it? Answer: No sir. 14. On this date the offender gave two further false answers to questions relating to corrupt solicitation of money and the development application at King Edward Street (contained within the Form 1 schedule). Count 4 - Give false evidence before ICAC 15. On 2nd May 2002 a number of short message service (SMS) messages were read at the hearing and the offender was asked questions about them and his involvement in obtaining bribe monies from Saglimbeni: Question: Well what I want to suggest to you is that Answer: Yes sir. Question: the context of things suggest that what you are saying is complete and utter nonsense and that you will -- Answer: No sir that's not the case. Question: and that you will see from the next SMS message Answer Yeah. Question: that Smyrnis is directing you what to say, directing you as to your cut as opposed to his cut and that this whole scheme is a scheme designed by you and him and perhaps others in relation to getting Saglimbeni to pay corrupt moneys to get his Development Application across the line? Answer: No sir that's not the case. Question: Not the case at all? Answer: No sir. (The SMS message then read onto the record was You are the medium. No contact with anyone else, 50K not refundable. You keep balance. If not okay balance, bal refunded. Has to go now!!) 16. On this date the offender gave ten further false answers to questions relating to the corrupt solicitation of money and the development application at King Edward Street (contained within the Form 1 schedule)."

Ground 1: The sentencing Judge erred in imposing an effective fine of $80,000 8 His Honour's reasoning in connection with these fines is, with respect, fairly exiguous. 9 As to the fine of $50,000, his Honour said: "He sought to obtain money by his activities and he should suffer the loss of money. I intend to impose in addition a requirement that he pay a fine of $50,000. It is my expectation that he should pay the fine. If he wishes to borrow it he can borrow it of course, I cannot stop that, but the fine is imposed on him not on any member of his family. It is imposed to make it plain that if people want to engage in this type of activity they should expect to suffer not only a loss of liberty but also a financial detriment. I think from the point of view of general deterrence a message will get out, at least I hope it will. If anybody should appear before me for any offence of this type in the future, except in the rather exceptional circumstances that attended Mr. Smyrnis' situation he could expect to get a fine as well as some other sentence." 10 As to the three fines of $10,000 each, his Honour said no more than that he was going to impose the fines. 11 Shortly after his Honour had finished his stating of the penalties, the following interchanges occurred, Mr. Browne then representing the Crown, and Mr. Wetmore then representing the applicant: "BROWNE: Your Honour can I just say that in relation to your Honour's judgment and your reference to - I note your Honour did say it's not quite clear what Mr. Retsos would have got out of his assistance, or aiding and abetting the substantive offence - I did make the submission on Tuesday that the Crown case would have been ten per cent, there was discussion with Mr. Smyrnis of ten percent which would be somewhere in the realm of 25,000 rather than 50,000, HIS HONOUR: Could be. Could be 25,000, could be 50,000, could be a concreting job. But clearly he expected to get, I want to make that plain, I hope I have made it plain since, he expected to get money out of it and not some pocket money but a substantial amount of money. BROWNE: Thank you. …………………………………………………………………………….. BROWNE: Can I just say in relation to those fines your Honour I understand that Mr. Retsos was a bankrupt. HIS HONOUR: The probation officer says he has a capacity to meet the fines. I looked up the authorities although I did not bring them down with me. I do not have to investigate whether that is so once I have some evidence which I would accept that he has a capacity to pay it. Now if he wants to borrow to pay it back he can do it but I rely on the responsible evidence of the probation officer. WETMORE: The problem with that is he is bankrupt so he cannot borrow. He thought he could, that's why obviously why he said to P and P - I would think he said something along the lines, "I can borrow the money", but they didn't know sufficient law as it turns out now to say, "well you can't do that", so that's why it's in the report, which creates a conundrum. HIS HONOUR: He will have to work out a way of doing it. WETMORE: I am certainly not going to counsel him in that. HIS HONOUR: The obligation to pay a fine can be imposed on anybody no matter what their status is and it is up to him to make an arrangement to pay it. He can deal with the trustee in bankruptcy. I thought he had been discharged. WETMORE: I don't think so. Not discharged. HIS HONOUR: I must have been thinking of someone else. If you want me to revisit it of course I can. I can correct any sentence. WETMORE: No your Honour we will leave it if it please the Court. HIS HONOUR: As I understand it with fines arrangements can be made with relevant authorities to pay them by instalments. WETMORE: Yes. HIS HONOUR: And it can be done also with the trustee in bankruptcy, whether the trustee agrees to or not I think. If he gets a job the trustee will require him to contribute a certain amount of each week's earnings to the bankruptcy. That's what's done. If the bankruptcy is for $9,000 only as I think that is what I was told, and he has the capacity to pay that out, the bankruptcy is capable of being annulled. It is surprising to me that with a bankruptcy of $9,000 there is no attempt to have it annulled. Maybe you could have a look at that but I would have thought it very often happens. People talk with the trustee in bankruptcy, they make arrangements to pay the money out and the bankruptcy is then annulled and then they get on with it. WETMORE: It makes sense that way your Honour. HIS HONOUR: If he doesn't do that he can make arrangements again from what money he earns, to pay the fines off at so much a week or a month. That is a matter for him ………………….. ." 12 When his Honour came to consider the appropriateness of fines and, if appropriate, the just amounts to be ordered, he was bound to proceed in accordance with section 6 of the Fines Act 1996 (NSW). It is there provided: "In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount." 13 The evidence before his Honour amounted to this:

[1] The applicant had not in fact received any financial benefit from his corrupt conduct.

[2] His most recent tax return, for the financial year ending 30 June 2004, returned an income of $21,000 gross. [T 43, 21.12.04]

[3] His earnings as at 21 December 2004 were $500 a week net.

[4] His wife was employed, but there was no evidence of what she was earning or of the availability to him of the whole or any part of her earnings.

[5] The wife herself gave evidence agreeing that she had "had to go out and expand your hours of work in order to assist supporting the family" .

[6] There were two dependent children aged 15 years and 11 years.

[8] The pre-sentence report contains this unvarnished statement: "the offender is able to meet a financial penalty" . The report does not reveal the particular source(s) relied upon in support of that statement; and does not give any indication of what penalty, or range of penalty, it was suggested the applicant could pay. 14 It is clear from his Honour's interchanges with Mr. Browne that his Honour was relying "on the responsible evidence of the probation officer". If that statement conveys, as it seems to me plainly to do, that his Honour took one terse and wholly unparticularised line in the pre-sentence report as justifying without more a conclusion that the applicant had a capacity, or even a potential capacity, to pay fines totalling $80,000, then in my respectful opinion his Honour has wholly failed to apply his mind in a reasoned and reasonable way to the mandatory requirements of section 6 of the Fines Act. 15 I can see, for my own part, no credible evidence that is remotely capable of establishing such a capacity to pay. In my opinion the fines cannot be properly supported and I would, therefore, uphold Ground 1.

Ground 2: the sentence imposed on the applicant does not comply with the parity principle having regard to the sentences imposed upon Messrs. Smyrnis and Limberis 16 As to the relevant principles, I adhere to, but need not repeat the detail of, what I wrote in a very recent judgment in Browne v Reg: CCA 62, 14/3/06 at paras 13-18. 17 When the applicant stood for sentence, the co-offender Smyrnis had already been sentenced by Judge Finnane. The other co-offender, Limberis, was scheduled to stand for sentence at some future time. As his Honour put it: "At this stage I really know very little about Mr. Limberis and his part in all this". 18 His Honour was obviously alive to the need to consider the just requirements of parity as between the co-offender Smyrnis and the applicant. His Honour dealt with that matter as follows: "When it comes to assessing penalties I must of course have regard to the fact that I have already sentenced Mr. Smyrnis. I have indicated already in the remarks that I have made that I regard the actions of Mr. Retsos as warranting condemnation. Even more it could be said, should there have been condemnation visited on Mr. Smyrnis. ……………………………………. . There are only two reasons that Mr. Smyrnis did not end up in a gaol for what he did. The first was that he provided outstanding assistance to the Independent Commission Against Corruption and they provided documentary support for that outstanding assistance. The second reason is that his wife, as a result of his exposure and the investigations which included the placing of listening devices in the family home, had a severe mental collapse and her situation was of such an extreme nature that I considered I, whilst I should pass sentences of imprisonment, I should not make them sentences of full-time imprisonment. He of course was also entitled to a significant discount on sentence because he had in the past offered to give assistance and had given it, and is prepared to give evidence at the forthcoming trial or trials. …………………………………………………………………… In my opinion the major culprit in the bribery matter was Mr. Andreas Andrew Smyrnis. He was the one who thought of the idea. He was going to be the principal beneficiary. He came up with the idea of $250,000 as a bribe and he used Mr. Retsos as a channel of communication. I have imposed a period of imprisonment on him and very much reduced it and made it one of periodic detention. In my opinion the current offender, just on the question of parity, must receive a lesser sentence, both in terms of time and perhaps type than was imposed on Mr. Smyrnis. He was not a solicitor, he was not a councillor, he did not abuse public office and what he was going to get from it was fairly uncertain. The evidence to which I have referred already, indicates that he was certainly discussing getting $50,000. I also accept his evidence that his main interest was in getting concreting work. It is hard to say. I think he could have expected to get some monetary reward by putting through this matter if it had happened and no doubt he would have got some or all of the concreting work. That would have been his expectation. I gave a sentence to Mr. Smyrnis for the other matters of bribery and I imposed a sentence for the false swearing matters of which he was guilty. In my opinion his culpability was very much greater in every respect in respect of every crime than that of the current offender because he was a solicitor, he was a councillor and he was going to be the principal beneficiary. It is against that background that I consider matters that would go to mitigation." [AB passim at 14, 15, 17, 18, 19] 19 In sentencing the co-offender Smyrnis, Judge Finnane explained as follows his Honour's ultimate sentencing structure: "I am as certain as I can be he will never come back before this Court again. From the period he offered assistance until the period he was brought to Court up to the present day the process of rehabilitation has continued. Overall he should receive a 50% discount. This is a case where to send him to full time custody would be to impose a degree of hardship on his family so exceptional it should not be done. I do not propose to put him into full-time custody despite submissions to the contrary of the Crown Prosecutor. The sentence is based on an acceptance he will continue to assist the authorities. 10% goes to him giving further assistance, if he doesn't assist, he would go into custody. But for the discount of 50% he would have received the following: Count 1: (and form 1 matters): NPP 2 years head sentence of 4 years Count 2: NPP 18 months head sentence 3 years (concurrent with count 1) Counts 3, 4 and 5 - any solicitor giving false evidence can expect a gaol term - NPP 1 year head sentence 2 years (3 & 4 separately cumulative and count 5 concurrent with count 4) Applying the 50% discount I would give a total head sentence of 3 years to be served by way of periodic detention. Count 1: fixed term 19/11/2004 to 18/11/2005 Count 2: fixed term 19/11/2004 to 18/08/2005 Count 3: fixed term 19/11/2005 to 18/11/2006 Count 4: fixed term 19/11/2006 to 18/11/2007 Count 5: fixed term 19/11/2006 to 18/11/2007 (concurrent with count 4)" [AB 64, 65] 20 I confess to having some difficulty in understanding this structure. The intended sentencing structure before a discount of 50 per cent, as adumbrated by Finnane DCJ, contains no indicative dating; and it is therefore not possible to see whether his Honour applied his mind to section 47 of the Crimes (Sentencing Procedure) Act 1999, and in particular to sub-section (4) of that section; or whether his Honour did not advert to the restrictions imposed by section 47. On the assumption that his Honour did advert to the requirements of section 47, then the pre-discount sentencing structure as adumbrated by his Honour would have yielded an effective sentence of 5 years and an effective non-parole period of 4 years. The proposed discount of 50 per cent ought logically to have yielded an effective head sentence of 2-1/2 years and an effective non-parole period of 2 years. I can see no rational basis upon which those calculations can be reconciled with the result achieved by the five fixed terms of imprisonment actually passed by his Honour upon Mr. Smyrnis. Those five fixed terms entail a sentence of actual custody of 3 years. There is no non-parole period, and no explanation of the absence of one. There is no consideration of the question whether a non-parole period of 2 years set as part of an overall sentence of 2-1/2 years is a justifiable apportionment as between non-parole period and overall head sentence. A total head sentence of 3 years unaccompanied by a non-parole period and representing a 50 per cent discount suggests an undiscounted head sentence of 6 years. The process of reasoning that underlies what is said in the material quoted from AB 64, 65 is not exposed, and in my respectful opinion cannot be otherwise discerned. Of course, an aggregate sentence exceeding 3 years could not have been ordered to be served by way of periodic detention, and perhaps that explains the end result. It would have helped, if I may say so with respectful frankness, to have had from his Honour a clear expression of a clear process of reasoning. To set sentences of imprisonment the underlying reasoning of which is both unexplained and impenetrable is, with respect, not a proper performance of the particular judicial function." 21 It happens that both the applicant and the co-offender Smyrnis finish up with exactly the same overall result as to sentence of imprisonment. This appears, at first blush, to be an odd coincidence, given his Honour's repeated opinion that the applicant should receive a lesser sentence than the co-offender. The apparent incongruity becomes, however, explicable when allowance is made for the 50% overall discount given to the co-offender, but not given to the applicant. 22 I am unpersuaded that the sentences passed upon the applicant, when compared with those passed upon the co-offender Smyrnis, offend the parity principle. I would be firmly of that view even without considering the practical consequence of this Court's now allowing the appeal against the fines component of the penalties imposed at first instance. That practical consequence leaves Mr. Smyrnis with a pecuniary penalty of some $3,910 and leaves the applicant with no pecuniary penalty at all. In my opinion any continuing sense of grievance thereafter on the applicant's part is not justified in the sense of which the relevant authorities speak. 23 The papers in the current application contain a deal of material explanatory of the basis upon which Judge Finnane calculated the sentence passed ultimately upon the co-offender Smyrnis; but they contain no comparable material explanatory of the case of the co-offender Limberis. That being so, I do not see any proper basis upon which this Court can now interfere with the applicant's sentence upon the basis that, when compared with the sentencing result in the case of the co-offender Limberis, it offends the parity principle. 24 I would not, therefore, uphold Ground 2.

Ground 3: The sentencing Judge erred in failing to impose a non-parole period on the applicant 25 The applicant was sentenced for offences committed prior to 1 February 2003. Judge Finnane was required, therefore, to sentence in accordance with section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as that section stood prior to its amendment by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW). That entailed his Honour's setting: first, "the term of the sentence"; and secondly, "a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence)". 26 His Honour, proceeding with a proper regard for the requirements of the Crimes (Sentencing Procedure) Act, was entitled to decline, in the exercise of a statutory discretion in that behalf, to set a non-parole period. In that connection section 45 of the Crimes (Sentencing Procedure) Act provides: "45(1) When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division D1A of this Part), a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence relates or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient. (2) If a court declines to set a non-parole period for a sentence of imprisonment it must make a record of its reasons for doing so. (3) Sub-section (2) does not any other limit requirement that a court has, apart from this sub-section, to record the reasons for its decision. (4) The failure of a court to comply with the requirements of sub-section (2) with respect to a sentence does not invalidate the sentence." 27 The only explanation given by his Honour for his decision not to set non-parole periods is this: "I am not providing non-parole periods. I am doing that very deliberately because I take the view that in cases such as this a person who engages in this conduct should expect to receive a sentence which should run for the whole of the period that I impose. I have considered fixing non-parole periods but have decided against it." [AB 28] 28 For my own part, and to speak once again with respectful frankness, I regard that statement, in so far as it makes sense at all, as being wholly inadequate as a precise expression of a precise process of reasoning that engages precisely some one or more of the statutory criteria set out in section 45(1)(a), (b) and (c). To that extent I would accept that his Honour erred. 29 That does not, however, invalidate the sentences themselves. It does entail that this Court is properly entitled to consider, pursuant to section 6(3) of the Criminal Appeal Act 1912 (NSW), whether some other and more lenient sentence is warranted in law. 30 I have no hesitation in answering that question: no. 31 The corrupt conduct of a public official is not a trifling offence. The aiding, abetting or other supporting of the corrupt conduct of a public official is not a trifling offence. Any offence of, or ancillary to, corrupt conduct on the part of any public official should be denounced plainly and punished condignly. Both the applicant and his co-offender Smyrnis were dealt with, leaving aside the fines impermissibly imposed upon the applicant and now removed by this Court, in a way which I, myself, consider to be extraordinarily lenient. Than an effective overall sentence of imprisonment for 3 years to be served by way of periodic detention should now be watered down even further, should simply not be countenanced. To do so would not conduce to the proper maintenance of probity in public life. It would achieve, in my opinion, nothing so much as an even greater cynicism than is already evident among sections of the public on the topic of probity in public life. 32 If this Court were now allowing a Crown appeal and passing a sentence of full-time custody, then my own view would be that such a sentence should be apportioned between a non-parole period and a period of eligibility for release to parole. But on the present application, it would be, in my opinion, quite wrong for this Court to reduce the effect of a strikingly lenient sentence to be served by way of periodic detention, and to do so by using the setting of a non-parole period as a convenient device to that end.

Orders 33 For the whole of the foregoing reasons I propose the following orders:

[2] that the appeal be allowed to the extent only of quashing the orders for the payment of fines totalling $80,000. 34 SIMPSON J: I agree with Sully J. 35 HOWIE J: I agree with Sully J. **********

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