Bellissimo v R (1996) 84 A Crim R 465

Darwell (1997) 94 A Crim R 35

Gallagher v R (1991) 53 A Crim R 248

Kim Long Quach v R [1999] WASCA 210

R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998

1 WALLWORK J: I agree with the reasons for judgment of Scott J and to the order proposed by his Honour.

2 MURRAY J: I respectfully agree with Scott J that for the reasons he gives, leave should be granted in this case and the appeal should be allowed. I would concur in his Honour's view that the sentence imposed with respect to the offence of possession of amphetamine with intent to sell or supply it to another should be reduced from a term of 6 years imprisonment to one of 4-1/2 years.

3 It is true, I think, as the respondent argued, that the applicant was presented with a fortuitous opportunity to obtain some support for the proposition that the investigating police had stolen money and a photograph from him. There is no doubt that he then sought to use that information to his forensic advantage during his trial, but it is also clear that he did co-operate with the police investigation of the allegation of theft made against the investigating police officers. That co-operation was asserted to be of value during the course of that investigation and, as Scott J has pointed out, that assertion was expressly not contested by the respondent. In those circumstances I think it cannot now be argued that the information in some way lacked cogency or was not of value. A discount of some substance from an otherwise proportionate sentence was required.

4 It is not to the point I think that, as the respondent argued, the applicant did not provide information against his interest in respect of his trial for the offences charged. He did not admit his possession of the drug in question, his intention to sell or supply it to others, or the source from which he acquired the drug. However, that is simply to say that had his co-operation extended to such matters and his information been directly related to the offences with which he was charged, he would have merited a greater discount than would otherwise be appropriate in the circumstances of this case. That is not to say that he was not an informer of some value in respect of the alleged stealing of his money, despite the fact that his possession of the money, hidden as it was said to be, provided evidence against the applicant in respect of the offences with which he was charged.

5 That brings me to the point of difficulty which I have had in considering this case. Two sums of money were seized from the applicant during the course of the execution of the search warrant at his home. There was a sum of $1,275 taken from his person which was said by the applicant not to be drug related money, but to result from legitimate transactions for which he sought to produce supporting documentation to the police. As I understand it the police returned that money to him, no doubt upon the basis that they were unable to establish that the money was unlawfully obtained.

6 A second sum of $1,000 was found secreted above the ceiling of the applicant's home. That was generally the location where the police found the drug which was the subject of the offence of possession of amphetamine with intent to sell or supply it to another. There were other items found in that general location which were seized as being related to that offence, scales and clip-lock plastic bags. In addition there was a reference to finding other items of property in the ceiling cavity. These were unrelated to the offence in question, but were said to provide generally relevant evidence in that they demonstrated that the applicant had the habit of secreting property in the ceiling cavity to avoid its detection. In the context of there being a real issue as to whether the applicant was knowingly in possession of the drugs in question, the relevance of such evidence is obvious.

7 As to the $1,000 found in this location, the applicant sought its return on the basis that it was his money legitimately obtained. He sought to demonstrate the truth of that assertion to the police, but they declined to return the money, saying that it was held as evidence.

8 Upon the applicant's conviction the respondent sought the forfeiture of that money to the Crown, but the learned trial Judge felt himself to be unable to accede to that order because he was unable to conclude that the grounds for it were established under the Misuse of Drugs Act. He said that if the Crown wished to pursue an appropriate application to enable that question to be ventilated, then the matter might be considered further. I do not know if the money in question remains in the possession of the respondent pursuant to a holding order.

9 The applicant did not initiate a complaint that the investigating police officers had stolen his money and that the $1,000 was simply the remnant of a greater sum. Once he was acquainted with the fact that information about the recorded conversation had been divulged to the police, it was always in his interest to support an allegation of theft, although there was a potential for harm to his case the greater was the amount said originally to have been secreted in the ceiling cavity (we were not informed what that sum was alleged to be). In addition, it was said of the applicant that he feared repercussions by reason of the allegations he was making against police officers.

10 In the end it seems to me that neither the court of trial nor this Court can proceed on any basis other than that the allegation of theft was genuinely made and supported by co-operation with the investigating officers. Whether the applicant derived a benefit from that process is not, I think, to the point. The discount to which he was entitled in respect of his sentence emanates from the importance of having an allegation of corruption and criminal behaviour by investigating police officers thoroughly investigated, unless it should prove to be the case that the allegation is fabricated.

11 For the reasons given by Scott J and for these brief additional reasons, I would concur in the orders to which I refer above.

12 SCOTT J: The applicant was charged on indictment with two counts of possessing amphetamine with intent to sell or supply it to another. The conduct was alleged to have occurred on 23 April 1997 at the applicant's house in Noranda. On the first count the applicant was convicted of simple possession of amphetamine, but on the second count he was convicted as charged.

13 On 18 June 1999 the applicant was sentenced to a term of 6 years imprisonment on the second count of the indictment and 9 months concurrent on the first count of the indictment. The applicant was made eligible for parole.

14 The applicant was granted leave to amend the grounds of appeal at the hearing of this appeal and there remain four grounds of appeal for consideration:

"1. The learned sentencing judge imposed a sentence that was manifestly excessive in all the circumstances of the offence and the offender.

(c) The Applicant's legitimate business achievements.

(d) The absence of a criminal record for drug dealing.

2. The learned sentencing judge erred in the exercise of his discretion by failing to give the Applicant any credit for his co-operation with the Police and other authorities and thereby failed to reduce the sentence accordingly.

3. The learned sentencing judge erred in finding that on the basis of the jury's verdict, the Applicant's only motive for the offence was for his own financial gain when there was no evidence before him to make this finding of fact.

4. The learned sentencing judge erred in finding that there was nothing on the evidence to suggest that the offence was a 'once-off or spur-of-the-moment idea' and thereby imposed a sentence that imported an element of prior drug dealing.

4.1 The Applicant had no prior convictions for possession with intent to sell or supply.

4.2 The manner in which the drugs were hidden, did not lead to an inference of prior dealing."

15 The essential facts giving rise to the prosecution were that on 23 April 1997, police executed a search warrant on the applicant's home at Noranda. The applicant and his partner were located at a nearby shopping centre and taken back to the house where the Drug Squad searched the premises. In an upstairs bedroom drawer the police located 4.3 grams of amphetamine of 7 per cent purity. The first count on the indictment related to this quantity of drugs.

16 Further searching of the premises revealed a cavity in the exhaust fan of the toilet where two bags of amphetamine were located. These were later analysed revealing that one bag contained 27.5 grams of 9 per cent pure amphetamine and the other 24.4 grams of 7 per cent pure amphetamine. The total of 54.9 grams was the subject of the second count on the indictment upon which the jury convicted the applicant of possession with intent to sell or supply.

17 It was common ground that the percentage of amphetamine in each of the quantities located was consistent with "street quality".

18 The police conducting the search also located a set of scales, a quantity of snap seal bags and some money.

19 The evidence reveals that after the raid was conducted, one of the police officers involved in the raid, Detective Suthers ("Suthers"), a member of the Drug Squad conducting the search, telephoned the Duty Sergeant at Police Headquarters. The conversation was picked up by one of the applicant's neighbours using a scanner and a recording was made of the conversation. A transcription of the conversation revealed the following exchange:

Suthers Um speed, 2 ounces in the fan, (ceiling fan) in the bathroom, cash, a lot of cash in another ceiling fan in the ensuite bathroom.

Suthers $1500 hundred bucks I think, but it was more but I think we've all shared it around, know what I mean.

Duty Sgt (laughs) You shouldn't even fucking say that (laughs)

20 It is common ground that the neighbour, having recorded the conversation, made it available to the State Attorney General who in turn referred the matter to the Assistant Commissioner of Police (Professional Standards).

21 The applicant also became aware of the tape and his solicitors in due course were appraised of it. It is common ground that the applicant and his partner later provided detailed information to the police Internal Affairs Unit to assist in the investigation of the matter.

22 Counsel for the applicant told the trial Judge that the applicant and his partner were involved in numerous lengthy recorded conversations with the Internal Affairs Unit, providing details of these allegations.

23 The applicant pleaded not guilty at trial and in the course of the cross-examination of Suthers who gave evidence for the prosecution, the tape-recording was used to attack his credit.

24 The extent to which the information provided by the applicant was of use to the investigating officers inquiring into the allegation against Suthers was not made clear to the trial Judge. All that was made known was that Suthers was eventually dismissed from the Police Force. When asked about his dismissal, Suthers agreed that he had been dismissed and said "with reasons, yes yes." It should also be made clear that in his cross-examination, Suthers told the jury that the comment he had made to the Duty Sergeant was merely a joke. Suthers denied that he and/or other officers had shared money obtained from the premises.

25 The applicant utilised the information he had obtained from his neighbour for his own forensic advantage. The tape-recording was used at the applicant's trial to discredit Suthers. The recording had been supplied to the Attorney General before the applicant co-operated with the Internal Affairs Unit of the Police Department. However, that having been said, it is fair to say that the applicant and his partner co-operated with the police internal investigations to the extent of making detailed statements about the conduct of police on the night in question.

26 It should also be mentioned that a photograph of the applicant's partner, said to have been taken from the applicant's premises was later found under Suthers' work station at the Drug Squad office. It was suggested by the applicant that the reason for taking the photograph was that Suthers had made a "pass" at the applicant's de facto partner when he was alone with her before leaving the applicant's premises. Again, this information was used to the applicant's advantage in the cross-examination of Suthers.

27 These matters having been used in the trial in that way and having been emphasised by counsel in the course of the plea in mitigation, were readily apparent to his Honour the trial Judge. Counsel for the applicant emphasised the assistance that the applicant had been to the Internal Affairs investigation in the inquiry that followed the police raid. As I understand the thrust of the plea in mitigation, counsel was suggesting that the applicant was entitled to a discount for the co-operation provided to the police Internal Affairs Unit.

28 In sentencing the applicant, the learned trial Judge made only a very brief reference to the applicant's co-operation with the Internal Affairs Unit. He said:

"I have been acquainted by Mr Burley of the co-operation that you showed or you gave to the Internal Affairs Unit in relation to the investigation of the execution of the search warrant and the taped conversation and the finding of the photographs in the Drug Squad office."

29 It is clear from that passage that his Honour was mindful of the nature and extent of the applicant's co-operation with the police, but nowhere in his Honours reasons was any specific discount given for co-operation.

30 Grounds 1.1(e) and Ground 2 of the applicant's grounds of appeal which have been set out earlier in these reasons are directed at the failure of the learned trial Judge to grant the applicant credit for his co-operation with the Internal Affairs Unit.

31 In this case it can properly be said that the applicant used the information that was obtained via the neighbour's scanner for his own forensic advantage. However, it is also a case where the applicant's co-operation with the authorities in providing statements to them was conduct which should have entitled the applicant to a discount from what would otherwise have been the appropriate sentence. That having been said however, this case graphically illustrates the need for each case to be considered on its own individual merits: see Salamen v R (1991) 55 A Crim R 384. It should be noted that in most informer situations a discount is provided where the offender provides information leading to the arrest of other people involved in the same criminal conduct. In those situations, an offender may put himself at risk in relation to his own criminal peer group and a substantial discount is often appropriate. That is not the case here.

32 In this case the applicant used the information he had obtained for his own forensic advantage by cross-examining a police officer in order to discredit him. In my opinion, in that respect, the applicant is entitled to no discount whatsoever. On the other hand, the applicant did provide the police Internal Affairs with considerable voluntary assistance by attending at the Internal Affairs Unit and providing detailed information about the conduct of the police officers involved in the raid. Whether that information was of value to the authorities was not made clear. At the hearing before the trial Judge the Crown expressly declined to express any view as to whether the information provided by the applicant was of value.

33 Where an offender does provide information to authorities to assist in the prosecution of others, normally a substantial discount will be called for. In R v Cartwright (1989) 17 NSWLR 243, Hunt and Badgery-Parker JJ said at 252-253:

"It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co-operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself. Information which turns out to be significant, but which is neither comprehended nor intended as such by the offender, has not been given in the spirit of willingness which the discount is designed to achieve. The circumstance that objectively the information subsequently turned out to be effective may perhaps demonstrate that the information possessed such a potential if it is not otherwise obvious upon the face of the information itself, but such effectiveness is not a requirement. As we have already pointed out, the offender will not lose the discount because in fact (unknown to him) the authorities are already in possession of that information. Nor should he lose it if the authorities do not in the end act upon his information, because (for example) they subsequently receive, or they have already received more cogent information from another source - or if the offender does not in the end give evidence as promised, because (for example) the person who is the subject of his information has pleaded guilty.

All of these matters should be dealt with in a broad and general way and without descending into minute detail. It would entirely subvert the benefit otherwise afforded to the public interest if, in cases where information has been given to the authorities, it became necessary for the sentencing judge to inquire into the investigative and prosecuting procedures in order to ascertain the extent objectively to which that information was in fact effective.

There could, however, be at least two factual situations in which it may become necessary for the sentencing judge to make some inquiry into such procedures. That need may arise where, in the proceedings on sentence, the Crown does not accept the prisoner's assertion that he had no reason to believe that the authorities were already in possession of the information which he gave, or where the Crown does not accept the prisoner's claim that his safety has been endangered as a result of having given it. In each case, the use to which the prisoner's information was in fact put may have some bearing upon the resolution of that dispute. There may well be other situations in which the need to make such an inquiry arises; they must be dealt with on a case to case basis. But it is important to emphasise that, in every such case, the inquiry relates to a subsidiary fact in dispute. The purpose of that inquiry is not to establish an independent basis upon which a discount should be allowed."

34 The same principle was expressed in Hayes v The Queen [1981] WAR 252 per Burt CJ at 253 which followed the decision of Wells J in R v Golding (1980) 24 SASR 161. In Hayes, Burt CJ said at 254:

"Informers, of course, come in all shapes and sizes and are motivated by many considerations. About such things the sentencing judge must make his own judgment. But should it appear that the information given has been of substantial assistance in the detection of crime and in the conviction of offenders and that the disclosures made have been full and frank, then when he comes to be sentenced some allowance should be made on that account. In a number of reported cases it appears that the allowance has been substantial and it has resulted in a reduction in the sentence of 50% or even more."

35 Those cases were discussed in Attwell v The Queen (1990) 1 WAR 540 per Malcolm CJ at 542-543. Malcolm CJ however, went on to say at 543:

"In my opinion, it is important for a sentencing judge to make it clear that he is making an appropriate discount so that the offender fully understands that his co-operation, candour and frankness have been rewarded."

36 In this case the learned trial Judge did not make clear either that he was giving any specific discount to the applicant for his co-operation or the extent of that discount. These reasons reveal the extent to which the trial Judge referred to the applicant's co-operation in his sentencing remarks. Again, in that respect, it is to be noted that the Crown remained silent on the issue of the value of the applicant's co-operation to the subsequent Internal Affairs inquiry and to the ultimate dismissal of Suthers. In those circumstances the Crown must be taken to have accepted the submissions made by defence counsel.

37 As I have indicated earlier in these reasons, in my opinion the applicant was motivated by his desire to obtain a forensic advantage by using the matter which he had obtained in the cross-examination of Suthers. It is to be noted that the applicant pleaded not guilty. It would seem that in providing the detailed statements to the Internal Affairs Unit, the applicant was also seeking to gain a forensic advantage in that allegations of police misconduct were being investigated by an independent authority prior to the matter coming to trial. The result was that a more effective cross-examination was possible.

38 Taking all of these matters into account, in my view on this aspect of the appeal, the applicant has made out his case. Whilst the assistance may well have been self-motivated, it nonetheless remains the case that the applicant did provide assistance to the authorities in providing detailed statements. That assistance was not disputed by the Crown and the emphasis placed upon it by defence counsel was unchallenged. In those circumstances, in my view, the applicant was entitled to a discount from what would have been the appropriate sentence. The sentencing remarks of the learned trial Judge reveal that no such discount was given. For these reasons, in my opinion, grounds 1.1(e) and 2 of the grounds of appeal are made out.

39 I then turn to the other grounds of appeal set out earlier in these reasons.

40 Grounds 1.1(a) to (d) refer to specific matters relating to the offences. It is common ground that the amphetamine in each count on the indictment related to "street purity" amphetamine and it is also common ground that the applicant had a successful legitimate business. In addition the applicant produced a number of references showing that he was a person of good character and a good family man. It is common ground that the applicant had only one prior conviction for drug related matters, being a conviction for possession of a prohibited drug on 12 August 1996. He was fined for that offence.

41 Having perused his Honour's sentencing remarks in some detail, I am not persuaded that any of the factors in grounds 1.1(a) to (d) were not properly taken into account by his Honour. It should be borne in mind that the sentencing Judge presided over a trial at which considerable evidence was called and had the advantage of assessing the factors referred to in grounds 1.1(a) to (d) . In my view the applicant has not made out any of these grounds.

42 Ground 3 challenges the finding of the learned Judge that the applicant's motive was financial gain. Once again in relation to this ground, the facts of the case need to be looked at in their totality. In addition to the quantities of amphetamines found in the applicant's house, the applicant had a sum of money hidden in the roof and other property was found hidden around his house. It was suggested that this was done for security reasons, but in my view it was open for his Honour to conclude, as indeed he did, that the applicant was involved in the illicit trade of drugs for financial gain. In sentencing the applicant, his Honour said:

"On the jury's verdict, the only motive for breaking the law can be your own financial gain."

43 No doubt his Honour had in mind that the jury had convicted the applicant of simple possession in relation to the first count on the indictment. It is clearly the second count, where the jury found that the quantity involved was for the purpose of sale or supply, to which the trial Judge was referring. In my view ground 3 of the appeal is not made out.

44 Ground 4 of the appeal related to the remark made by the learned trial Judge in sentencing:

"There is nothing on the evidence to suggest, once the jury's verdict has been accepted, that this was a once-off or spur of the moment idea and that can be seen from the care taken to hide the drugs. It seems to show some degree of planning."

45 Again, in relation to this ground of appeal, it should be borne in mind that his Honour presided over a trial. There was evidence from which his Honour could properly conclude that care had been taken to hide the drugs because, as indicated earlier, the drugs were found secreted in a cavity in the toilet exhaust fan. In addition, plastic snap seal bags were located in the dishwasher which, as his Honour said, was consistent with possession for sale or supply. Again with respect to this ground of appeal, in my view it is not made out.

46 The applicant therefore succeeds on grounds 1(e) and ground 2 and to that extent only. I would emphasise that in many respects this case is quite unique in that the applicant's assistance to the authorities was substantially self-motivated and used in the trial for the purpose of gaining a forensic advantage. To the extent that the applicant's co-operation went beyond that by the provision of detailed information to the Internal Affairs Unit, he is, as I have said, entitled to some credit. That credit needs to be assessed within the context of all the other factors. I would grant leave to appeal and allow the appeal. In my opinion the applicant is entitled to a discount of 25 per cent from the sentence imposed. I would achieve that result by reducing the sentence of 6 years imposed in respect of count 2 on the indictment to one of 4-1/2 years. The sentence of 9 months imprisonment for the first count on the indictment should remain unaltered as should the parole order. The sentences should run from 11 June 1999, the date fixed by the trial Judge.