REGINA v DUONG [1999] NSWCCA 353 | Case summary

1 WOOD CJ at CL: I will ask Justice Newman to delivery the first judgment. 2 NEWMAN J: This is a Crown appeal brought pursuant to s 5D of the Criminal Appeal Act. The appeal is brought against the sentence imposed by Williams DCJ on 15 March this year. Before his Honour the respondent had pleaded guilty to a charge which may be shorthandedly referred to as offer bribe contrary to the provisions of s 200(2)(a) of the Police Service Act 1990. The maximum penalty stipulated by that Act for this offence is 200 penalty units or imprisonment for seven years or both. In the event his Honour imposed a head sentence of three years constructed of a minimum term of two years commencing on 15 March 1999, the date when the respondent appeared before him, and expiring on 14 March 2001, together with an additional term of one year commencing on 15 March 2001 and expiring on 14 March 2002. 3 At this stage it is important to note that prior to being sentenced by his Honour for this offence the applicant had been sentenced by his Honour Mitchelmore DCJ on 13 February 1997 for another offence. That offence was the offence of supply a large commercial quantity of a prohibited drug contrary to the provisions of s 25(2) of the Drug Misuse and Trafficking Act 1995. The maximum term for transgression of that section is life imprisonment. Mitchelmore DCJ sentenced the applicant there to a minimum term of five years commencing on 20 September 1996 and expiring on 19 September 2001 and fixed an additional term of three and a half years commencing on 20 September 2001 and expiring on 19 October 2005. Other orders had been made in the matter which I need not refer to. 4 It is plain then that the sentence imposed by Williams DCJ, as indeed his Honour stated in his reasons for sentence, was, in effect, to impose a sentence to be served concurrently with the sentence imposed by his Honour Mitchelmore DCJ. This is a matter of some importance in this appeal and to which I shall return later in these reasons. 5 I turn then to the facts of the matter. The respondent was apprehended on 20 September 1996 at Holbrook by traffic police. He was apprehended following a message relayed to police by a truck driver that the car in which the respondent was travelling was travelling erratically. When police stopped the car certain objects were found within the car. Those objects constituted principally a large quantity of heroin, namely heroin weighing some 2.6 kilograms. It was heroin of a very high purity. The estimated street value of that heroin was over $8,000,000. It was that matter which caused the applicant to appear before his Honour Mitchelmore DCJ and his Honour's sentence was imposed in relation to the quantity of heroin found in the car. Again the applicant, as he did before his Honour Williams DCJ, pleaded guilty. 6 When the car was apprehended at Holbrook on 20 September 1996 and after the discovery of the heroin by police the respondent said to one of the arresting police, namely Senior Constable Dawson, "You tell other man that if I give you 100,000 dollar you let us go." Soon afterwards the respondent spoke to the other police officer involved in the arrest, one Senior Constable Russell. To him he said, "I give you money, you let me go. I give you money, you let me go". He was taken down to the police station. On the way to the police station at Holbrook he had another conversation with Senior Constable Dawson. This time he said this, "You tell him (pointing to Senior Constable Russell) "I give you 100,000 dollar and you let us go". Dawson responded, "So you are offering to give me one hundred grand to turn a blind eye and let you and your mate go?" The respondent said, "You let us go and I give you money." Dawson said, "Where are you going to get that sort of money?" The respondent said, "I get it, you let us go. Yes." 7 The matter was taken up by police in a record of interview conducted by way of ERISP in the police station. In the interview the respondent denied that he had offered a bribe and I need not dwell upon the contents of the ERISP However, it is plain that the respondent must have been aware that he had encountered two police who were not prepared to corrupt themselves by accepting the bribe money he had proffered. It was these facts which founded the sentence imposed by his Honour Williams DCJ. 8 In sentencing the respondent his Honour made the following observations: "As the Crown says, bribery of police officers is not a minor offence. It is a serious offence. We have only got to look at the Royal Commission to see how seriously those types of offences are regarded and the damage that they do to the community and more particularly to the police force. However, I have some difficulty in seeing in the way this offence was committed that the offence would warrant requiring the prisoner to serve any additional term other than the one that he is already serving." 9 He then went on to observe that originally this offence had been before his Honour Mitchelmore DCJ by way of a Form 1. However, before his Honour Mitchelmore DCJ it was announced that the respondent wished to contest this matter and accordingly his Honour Mitchelmore DCJ did not take it into account. In fact what his Honour Mitchelmore DCJ said in his reasons for sentence are these: "In the proceedings before me, there has been reference to an allegation the offender made an offer of a bribe of $100,000 to the police. That offence was to be put on a Form 1. That matter is now contested. I put those allegations out of my mind in this sentencing procedure. Clearly the offender is entitled to the presumption of innocence in relation to the bribe matter." 10 His Honour Williams DCJ observed that had the Form 1 matter been persisted with before his Honour Mitchelmore DCJ it probably would have been dealt with by way of a concurrent sentence at the time. That may be so. He then went on later in his reasons to say this: "However, what concerns me about the matter in the way it is expressed in Senior Constable Dawson's statement, is that had the offer been taken further, had there been further efforts on the part of either the prisoner or others to try and do something about this matter, I can well understand that a sentence in addition to the term that was imposed might be warranted. But the way it is expressed it all seems to me to be part of a general pattern of behaviour of the prisoner at the time that the first offence that he was detected in, of trying to get out of it, by any means possible and secondly by denying any involvement in the offence. Now he hasn't sought to take the bribery issue any further and he pleaded guilty to the main offence at the earliest opportunity for which he was given appropriate credit for. In those circumstances I find it very difficult to see that this offence in the circumstances in which it was committed warrants any additional term of imprisonment." 11 And hence the sentence passed to which I have made reference. 12 It is trite law that Crown appeals should only be brought in extraordinary cases. As Barwick CJ put it in Griffith v The Queen, (1977) 137 CLR 293 at 310 such appeals should be a rarity. They should be brought only to establish some matter of principle and to allow this Court to lay down principles for the governance and guidance of courts exercising criminal jurisdiction in this State. Here the question is whether the sentence passed by his Honour is so inadequate as to be indicative of error or departure from principle. In my view it is. 13 On behalf of the respondent Mr Costello of counsel has submitted that having regard to concepts of totality of criminality and the sentence passed by his Honour Mitchelmore DCJ, his Honour Williams DCJ's approach was correct. He relied upon what had fallen from the Supreme Court of South Australia in The Attorney of South Australia v Tichy (1982) 30 SASR 84, particularly at 85, what had fallen from the then Chief Justice, King CJ, when he said: "The essential thing to be borne in mind is that if the sentences are made consequentially there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence." 14 The matter of bribing police or, for that matter, bribing any official involved in the justice system, has been the subject of a number of comments by superior courts. In R v. Pangallo (1991) 56 A Crim R 441 at 443 Lee CJ at CL, with whom the other members of the Court agreed, observed: "In my view, the crime of bribery is always to be regarded as one which strikes at the very heart of the justice system and it must be severely punished whenever it is detected." 15 The first of the errors manifest, in my view, in his Honour Williams DCJ's reasons was that he did not in fact punish the respondent at all. As I have observed, and indeed is apparent from his Honour's reasoning, he deliberately imposed a sentence which would be concurrent with the separate and also the serious offence involving the heroin. The fact is that offence is a very serious offence. It is not an offence of a minor kind, as is apparent from the observations made by Lee CJ at CL, as indeed common sense would dictate. 16 Secondly, his Honour Williams DCJ, as I have indicated, was influenced by the fact that the bribery attempt did not go to ultimate fruition. That, in the context of this offence, is not a matter which is mitigating unto itself. 17 In R v. Taouk (1992) 65 A Crim R 387 at 292.2 this Court made it plain the significant element in the offence is attempt. In Taouk's case the bribery attempt involved a District Court Judge, whom I might say never heard of it; the attempt was made through intermediary police who themselves, I should add, acted entirely properly. I should observe I was the trial Judge. But attempt is a significant feature and this was an attempt. 18 His Honour in putting, as it were, the matter to one side because it was a mere attempt, fell again into error. 19 Thirdly, the sentence which is Honour passed, looked at alone, namely a sentence of three years constructed as to a minimum term of two years and an additional term of one year, is, in my view, an inadequate sentence in terms of the crime with which we are dealing. 20 As I have said at the outset of these reasons, the maximum term stipulated for by the Police Service Act is seven years imprisonment or 200 penalty units or both. Here we have an offence which, had the attempt succeeded, two results would have followed: first, two police would have been corrupted; second, no less than $8,000,000 worth of heroin would have found its way on to the streets of Sydney with the horrific social consequences which would flow from that release. 21 These matters, and particularly the second of them, in my view place this attempt to bribe police squarely within the category of the worst type of case Ibbs v. The Queen (1991) 163 CLR 447 and Veen No 2 (1987-88) 104 CLR 465 at 470. 22 Accordingly, this was a matter in which the maximum sentence of seven years imprisonment or 200 penalty units or both was a sentencing option open to his Honour. As is plain from what I said when dealing with the principles which guide Crown appeals, it is not a matter for this Court to say that they would have imposed a different sentence had this Court been sentencing. A Crown appeal can only succeed if in fact the matters I have adverted to earlier in these reasons are made out. However, I should observe that if I had been sentencing in the Court below I would have had no hesitation in these circumstances in imposing the maximum penalty, namely a head sentence of seven years, albeit constructed by way of minimum and additional terms. 23 Accordingly, having regard to the matters in which I believe Williams DCJ fell into error, he has passed a sentence which in my view is so inadequate as to be clearly indicative of error in terms of departure from principle. It therefore follows that in my view this appeal should be upheld. I am mindful, however, that in substituting a sentence I should have regard to the concept of double jeopardy and also have regard to the principle of totality. I am also aware, as I have said, that his Honour Mitchelmore DCJ when passing sentence on the heroin matter found special circumstances. 24 The sentencing order I propose will result in an ultimate additional term which will be less than that set by Mitchelmore DCJ but, in the circumstances, it is my view that such an alteration is inevitable and unavoidable. For myself I would substitute the term of five years constructed as to a minimum term of three years to date from the time he would be eligible for release under his Honour Mitchelmore DCJ's sentencing order and I would then add an additional term of two years. In so doing, as I have said, I have taken into account his Honour Mitchelmore DCJ's finding of special circumstances. 25 It follows from this that I would propose the following orders:

REGINA v DUONG

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