Supreme Court of SA|1994-07-22|Before: King CJ

R v RUDRA NATH No. SCCRM 94/207 Judgment No. 4689 Number of pages - 7 Criminal law and procedure - appeal against sentence (1994) 74 A Crim R 115 [1994] SASC 4689 (22 July 1994)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), PRIOR(3) AND PERRY(1) JJ

CWDS Criminal law and procedure - appeal against sentence - Application by the Crown for leave to appeal against a suspended sentence of four years imprisonment with a non-parole period of two years and eight months imposed on a 54 year old public servant who pleaded guilty to eleven counts of receiving bribes, with forty other counts taken into account - the respondent, a purchasing officer with the Department of Supply, received "kickbacks" from contractors tendering for goods and services, involving in all approximately $23,000 over a period of some three and a half years - held that there was no good reason to suspend the sentence and that the decision to do so was an error which in the circumstances justified the grant of leave to appeal to the Crown - leave granted and the appeal allowed for the purpose of guashing the order suspending the sentence. Malvaso ; , considered.

JUDGE1 PERRY J This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed upon the respondent in the District Court on 4 May 1994.

The respondent pleaded guilty to eleven counts in an information, being five counts of bribery at common law and six counts of having improperly accepted various amounts of money in his capacity as a public officer, contrary to s.249(2) of the Criminal Law Consolidation Act 1935. There was no difference in the nature of the alleged offending as between the common law counts and those laid pursuant to statute. The fact that some but not all of the charges were laid under the statute is explained by reason of the fact that s.249(2) in its present form, which superseded the offence of bribery of a public officer, which offence was abolished at the time of the enactment of s.249(2), did not come into effect until 6 July 1992 (see Statutes Amendment and Repeal (Public Offences) Act 1992, ss.7 and 10). The common law counts were committed before that date.

The respondent asked the Court to take into account forty similar offences.

The maximum penalty for an offence against s.249(2) is seven years. The penalty for common law bribery of a public officer, before that offence was abolished, was at large.

The sentence the subject of the application for leave to appeal is a single sentence of four years imprisonment with a non-parole period of two years and eight months, imposed pursuant to s.18a of the Criminal Law (Sentencing) Act 1988 with respect to all of the counts. The sentence was suspended on the respondent entering into a good behaviour bond for three years in the sum of $1,000 on condition that during the period of the bond he complete 150 hours of community service within eighteen months.

The offences were committed between May 1989 and February 1993. The total of the amounts involved in the offences, including those to be taken into account, was approximately $23,000.

The grounds upon which leave to appeal are sought are: "(a) The sentence was manifestly inadequate given the

multiplicity of offending and the breach of public trust; (b) The Learned Sentencing Judge erred in utilizing section 18a of the Criminal Law (Sentencing) Act 1988 given the number of offences charged and the number of offences to be taken into account, and (c) The Learned Sentencing Judge erred in suspending the sentence given the gravity of the offending and the principles of general deterrence."

At the hearing of the application, ground (b) was not pressed by Mr Jennings QC of counsel for the Director of Public Prosecutions.

The Court heard full argument on the merits of the proposed appeal as well as on the application for leave to appeal. That course does not relieve the Court from giving "careful and distinct consideration" to the question whether the Director of Public Prosecutions "has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which the grant of leave" to the Crown to appeal against sentence is justified (Malvaso [1989] HCA 58; (1989) 89 ALR 34 per Deane and McHugh JJ at 39). At the time of the offending the respondent, who had no prior convictions, was a purchasing officer within the Department of Supply. His classification was that of a senior clerk. One of his functions was to deal with persons tendering for the supply of goods and services to the State Government.

The earliest offending involved a Mr Hassfurter who was the proprietor of a printing press. The respondent was living in a de facto relationship with Hassfurter's sister-in-law. The respondent arranged with Hassfurter for the latter to inflate the amount of quotes for printing work. After the quotes were accepted and the work done, Hassfurter paid the amount by which the quote had been inflated to the respondent in cash out of the payment which Hassfurter received from the State Government.

The respondent applied the same modus operandi in dealings with five other contractors apart from Hassfurter.

The six contractors, including Hassfurter, were separately charged and dealt with in the District Court. They all pleaded guilty to bribery of a public official. Their sentences were pronounced before the respondent came up for sentence. Hassfurter was dealt with by the same Judge whose sentence is the subject of the present application. The other five contractors were dealt with by other District Court Judges. Hassfurter received a sentence of three years imprisonment, suspended on his entry into a good behaviour bond for a period of three years. The other five offenders received lesser sentences; in one case a conviction without penalty and in the others convictions ranging between nine and eighteen months imprisonment. As in the case of Hassfurter, the sentences imposed upon the four other contractors who were sentenced to terms of imprisonment were suspended.

During the course of sentencing the respondent, the learned sentencing Judge said: "Mr Hassfurter painted you to the police and to this Court as the instigator of the scheme and the principal villain. I accepted that. But Mr Edwardson has persuaded me that I was misled. I accept now that the initial suggestion arose between you and Mr Hassfurter and I am prepared to accept in your favour that the scheme was even initiated at his instigation. I accept that Hassfurter was involved in the introduction of other people to you and to the scheme. It may well be that Hassfurter took separate rewards from those people as well, as Mr Edwardson suggested to me, but that is not relevant to me now."

Those remarks highlight the undesirability of co-offenders being sentenced by separate Judges, or by the same Judge on separate occasions. While it must be accepted that it is not always possible to arrange criminal lists so as to avoid those situations arising, there is nothing to suggest in the papers in this case that the learned sentencing Judge could not have heard the submissions for both Hassfurter and the respondent before sentencing either.

At the time he was sentenced the respondent was 54 years of age. He is a native of Fiji. He migrated to Australia in 1958. In 1963 he gained employment with the E and WS Department. In 1974 he was transferred to the Public Buildings Department as it was then known. In about 1990 he took up a position with the Department of State Services, which was the position he held when the offences were committed. The respondent separated from his wife in
In 1987 he entered into the de facto relationship with Hassfurter's sister-in-law.

Although it was suggested to the learned sentencing Judge that the respondent had to struggle to support both the children of his marriage and the children of his de facto wife on his modest salary as a public servant, no other possible explanation for the offending was identified in the material before the learned sentencing Judge, other than that he had been led into receiving the corrupt payments by Hassfurter.

The respondent's offending came to light in February 1993 when he was arrested and charged. Soon thereafter the Crown applied for an order for forfeiture of his interest in a house property which he owned together with his de facto wife. At the conclusion of the submissions on sentence, but before sentencing the respondent, the learned sentencing Judge made an order for forfeiture to the extent of the total loss of $23,096.60.

It was submitted to the learned sentencing Judge and to this Court that by acquiescing in that order the respondent had made full restitution. To say the least, there is some conceptual difficulty in equating an order for forfeiture with restitution in the ordinary sense. Be that as it may, the application was argued on the footing that the learned sentencing Judge correctly took into account what he described as "full restitution", although Mr Jennings QC for the Director of Public Prosecutions suggested that in this case there was an air of inevitability about the sale of the property which should result in this Court taking the view that the so-called restitution was not "a significant consideration". In my opinion, that submission is correct.

The gravamen of the respondent's offending was that he abused a position of public trust for his own gain by a calculated system of fraud and deception conducted over a substantial period of time. The learned sentencing Judge recognised the seriousness of the offence. He said (T246): "There is no doubt in my mind that your offending is of

a most serious kind. Part of my duty in imposing a sentence upon you is to let it be seen that the community cannot tolerate breaches of trust and dishonesty by public servants. In all but the most exceptional cases I think that an immediate custodial sentence would be demanded. I have other duties, however. One is to ensure as best I can that my sentence is consistent with others imposed by other courts and, indeed, with sentences imposed by me. I have regard to those matters. Another is to have regard to you and your circumstances and to be as merciful as I am able to be. You are now aged 54 years. You will be 55 in a couple of days. You have no previous convictions. You have borne a good reputation. You have worked hard. You have suffered immensely already. You have lost your position, both of trust and of the security which a Public Service position offers. You fought to obtain that position against the adversity of your racial background and I accept that you held your position in situations where prejudice on racial grounds was exerted against you. I have, on the positive side, admiration for your fortitude in what you have done. On the other hand, of course, I have condemnation for you

He went on to observe that there appeared to be little chance of the appellant being employed again, that he had brought shame on himself and distress to his family and that as a result of the stress of the proceedings his marriage had broken up (I assume that to be a reference to the de facto relationship). His Honour went on to refer to the fact that the appellant had lost the benefit of superannuation entitlements which he otherwise might have received in due course.

Mr Jennings QC focused on that passage in sentencing remarks, together with the learned Judge's decision to suspend the sentence as being indicative of error. The error is said to arise by reason of a misconceived attempt to achieve consistency with the other sentences; an undue emphasis being placed upon the personal circumstances of the respondent; and the failure to allow properly for the seriousness of the offending given the position of trust held by the respondent.

As Mr Jennings QC put his argument during the course of submissions to this Court: "The Crown submission in a nutshell is that it was of such seriousness, persistence attended by such circumstances of aggravation that given his position and the abuse of that position, nothing short of an immediate custodial sentence was required."

He went on to submit that the reasons which prompted the learned sentencing Judge to suspend the sentence were "unexceptional".

Although the learned sentencing Judge did not identify the particular considerations which led him to suspend the sentence, it must be assumed from the passage which I have cited from his sentencing remarks that he reached the view that the matters there referred to constituted "good reason" for the suspension within the meaning of s.38(1) of the Criminal Law (Sentencing) Act

In my opinion, there were no circumstances which could possibly have supported the view that there was good reason to suspend the sentences. The respondent's position as a public officer clearly served to distinguish his offending from that of the contractors with whom he dealt. The fact that their sentences were suspended did not constitute good reason for the respondent to be treated in a similar fashion. In any event, the six contractors were fortunate to have been dealt with so leniently.

Whether out of a desire to maintain parity with the other sentences imposed on the contractors, or by reference to the personal circumstances of the respondent or by reference to a combination of both, the learned sentencing Judge was led into error in making the order for suspension.

A breach by persons holding public office of the duty to act honestly in the performance of their public duties is a most serious matter which should ordinarily attract a substantial penalty. The seriousness of the offending here in question was compounded by reason of the fact, not adverted to by the learned sentencing Judge in his sentencing remarks, that the respondent received from one of the contractors, one Gauci, the sum of $500 being the subject of count 6 of the information, on 23 February 1993, which was after he had been arrested and released on bail.

When, as in this case, there was a calculated, systematic course of dishonesty constituting a breach of trust by a public official extending over a substantial period of time, and involving a substantial sum of money, the suspension of the sentence must be characterised as an error in the exercise of the sentencing discretion. Whatever the personal circumstances of the respondent, they could not operate to justify suspension of the sentence, given the circumstances of the offending. That error is so serious that it warrants the grant of leave to the Crown to appeal. Intervention by this Court is necessary having regard to the need for the sentence to operate as a general deterrent, and to maintain a proper level of sentencing for offences of this kind.

I have considered whether, given my view that the sentencing discretion has in this case miscarried and must therefore be exercised afresh by this Court, it would be appropriate to impose a penalty in excess of four years imprisonment. Were it not for the fact that the respondent has already performed most of the community service which he was ordered to perform as a condition of the bond, and were it not for the element of double jeopardy in appeals by the Crown against sentence, I would have increased the length of the term of imprisonment.

However, while making it plain that in my view the head sentence of four years is lower than a proper sentence for this offence, I would give leave to appeal and allow the appeal for the limited purposes of quashing the order suspending the sentence.

The sentence of four years imprisonment and the non-parole period of two years and eight months should otherwise stand.

JUDGE2 KING CJ In my opinion leave to appeal should be granted. The appeal should be allowed.

The order suspending the sentence should be set aside. The sentence and non-parole period should be otherwise affirmed, both to commence on the date on which the respondent is taken into custody to serve the sentence.

JUDGE3 PRIOR J Leave to appeal should be granted and the appeal allowed to have the appellant serve the sentence of imprisonment suspended by the sentencing Judge. The sentence and non-parole period to commence on the date when the appellant is taken into custody.

I agree with the reasons published by Justice Perry.

Criminal Law Consolidation Act 1935

Statutes Amendment and Repeal (Public Offences) Act 1992

Criminal Law (Sentencing) Act 1988

Criminal Law Consolidation Act 1935

Statutes Amendment and Repeal (Public Offences) Act 1992

Criminal Law (Sentencing) Act 1988

R v RUDRA NATH No. SCCRM 94/207 Judgment No. 4689 Number of pages - 7 Criminal law and procedure - appeal against sentence

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R v RUDRA NATH No. SCCRM 94/207 Judgment No. 4689 Number of pages - 7 Criminal law and procedure - appeal against sentence (1994) 74 A Crim R 115 [1994] SASC 4689 (22 July 1994)

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