Director of Public Prosecutions v Hancock

[2015] VCC 176

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-01687

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEIL JOHN HANCOCK

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2015
DATE OF SENTENCE:	20 February 2015
CASE MAY BE CITED AS:	DPP v Hancock
MEDIUM NEUTRAL CITATION:	[2015] VCC 176

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn
For the Offender	Mr R. Gipp

HIS HONOUR: 

1Neil John Hancock, you have pleaded guilty to an indictment charging you with one offence of bribery of a public official, between 25 July 2006 and 1 November 2010, a period of almost four and half years.  You have also pleaded guilty, Charge 2, to an offence of recklessly carrying on a business as an unlicensed sex worker provider, between 20 August 2010 and 3 November 2010.

2You have no prior convictions.

3The prosecution has tendered and relied upon a summary prosecution opening, which is Exhibit A, and that was read this morning.  I will not read it again.  Suffice to say that over a period of many years, since about 1998, you have operated a business called Club Striptease from premises in Richmond, firstly at Kipling Street and then at Kipling Mews.  That was a business conducted under a permit from the City of Yarra Council.

4During the period that you were operating that business, you came to know a Mr Ken Wolfe, who was a City of Yarra enforcement officer, charged with enforcement of the law relating to premises such as yours and the businesses conducted therefrom.  The history that I was given during the course of the plea, which I accept, is that you became friendly with Mr Wolfe during that period.  You were told by him about alleged health problems involving members of his family and of financial pressures that he was facing during that period.

5Concurrently and for many years, you were a person who had habitually provided financial assistance to a number of persons who were in need.  Over a period of many years you expended large sums of money on people who were less fortunate than yourself, at least financially and you accorded the same kind of facility, initially it seems, to Mr Wolfe.  What you did not know was that Mr Wolfe was stringing you along and was playing upon your good nature to extract money from you.  It seems that, at least during the period up to the time of the offending, the subject of Charge 1, you had provided moneys to Mr Wolfe in the form of loans as well as donations.  Those loans, as I am instructed, were never repaid.   That that was not something that troubled you.

6As I pointed out during the course of the hearing, it would be a natural thing for a person conducting a business such as yours, which is always likely by its very nature, to operate close to the legitimate boundaries of the law to ensure that you were on good terms with enforcement officers in the area.  It would be simply bad business not to be, but there is obviously a clear line somewhere to be drawn between providing charity to persons in that position and bribery.

7The indictment is drawn and the facts are presented on the basis that the offending, or the nature of your relationship became one in which you were engaged in bribery, only during the period of the offending conduct, and I sentence you on that basis.  It seems during that period that a number of payments were made.  I think a total of 58, amounting to $15,390 over the period of the offending which is the substance of Charge 1.

8It may be that you did not receive much in the way of tangible benefit in the sense of tip-offs and the like during that period.  You received visits from time to time from Mr Wolfe along with other enforcement officers, in the period of the offending conduct, your payment to him had become payments for insurance with a hope, if not an expectation, that you would be treated favourably by Mr Wolfe and his associates in the enforcement of the law so far as your business was concerned.  By the end of the period of your offending conduct, you were receiving tip-offs from Mr Wolfe and there is a clear correlation, it seems to me, between the conversations you were having with Mr Wolfe about visits by police and by visits from himself and Consumer Affairs that is impossible to ignore.

9The offence, the subject of Charge 2, is of recklessly carrying on a business as an unlicensed sex service worker provider.   That is to be distinguished from the more serious offence of doing that intentionally, or knowingly.  I proceed to sentence you accordingly and I proceed to sentence you on the basis that offending occurred during the period set out in the indictment, between 20 August 2010 and 3 November 2010.

10The police by that time had started to tap your mobile telephone.  I was referred to some of the conversations that were recorded as a result of that telephone interception.  It seems to me, looking at the call, for example No.109, to which my attention was particularly drawn by Mr Gipp on your behalf, that the nature of the conversation between you and Mr Wolfe supports the submission made on your behalf that you had taken steps to instruct your staff to behave in a lawful way, although clearly you were aware at least of the possibility of them engaging in hand relief activities and at least the occasional "head job" as you put it.  It is on that basis that I proceed to assess the seriousness of that offence. 

11Clearly it shows a recklessness but had the situation been different and had the relationship between you and Mr Wolfe been different, it might reasonably have been expected that the conversation would reveal a greater level of knowledge and expectation on your part about the conduct of your staff than that conversation does, given that you and Mr Wolfe by that time had been involved in a semi-professional relationship, if I can put it that way, for a period of about ten years.  That is not to say that the offence is not a serious one.  What I have said about the offence of bribery is not in any way to diminish the seriousness of that offence.

12As has been pointed out by the various other judges that have dealt with Mr Wolfe and other persons who have been engaged in bribery of Mr Wolfe, it is to be regarded as a particularly serious offence because as the Chief Justice of New South Wales said in the passage quoted by a number of those judges from the decision in George & Ors (1987) 29 A.Crim.R 380 at p.403:

"The crime of which they have been convicted is a serious one.  The maintenance of a democratic system of government is dependent upon the public acceptance and the trust of public officials.  An attempt therefore to corrupt public officers strikes at the very fabric of our democratic way of life."

13I do not think I can improve on that in assessing the nature of the seriousness of offending conduct of that kind.  That said, there are many worse cases of bribery that have been exposed over the years.  Although this offence involves a continuing course of conduct over a period of almost four and a half years, which obviously is an aggravating feature, this does not seem to me to be at the high end of the range of bribery in cases such as this.

14Turning to matters personal to you.  Your counsel provided me with an outline of sentencing submissions, which is Exhibit 1.  References from Mr John Baker, your former business partner; from Mr Krynon and from Mr Desmond O'Brien, each of whom speak very highly of you, having known you for a number of years and having had dealings with you which would enable them to fairly assess your character.

15I am prepared to accept that you are a man of genuinely good reputation in the community in which you operate and that you are highly regarded as a person by people who know you well.  They have assessed that you are not only embarrassed but are sorry for your involvement in these offences.  They also refer to the difficulties that you have had to overcome during the last 40 years since you were very badly injured in a motor car accident and have been confined to a wheelchair since that time.  It is, I think, very much to your credit that you have overcome that to a very large extent and have been able to lead a productive life and to have done that without falling foul of the law.  Also it seems you have been able to conduct this business in an industry which is likely to attract the attention of law enforcement over a substantial period of time without offending in any way other than the way in which is set out in the indictment to which you pleaded guilty.

16You have also continued that business since your apprehension in November 2010 and have apparently done that in a lawful manner.  You continue to do that, although as I understand it you are hopeful that you will be able to sell the business in the near future and retire, that the contract you have for the sale was $150,000 will go through and that you will be able to retire.

17The balance of the correspondence which forms Exhibit 2 is correspondence from various medical practitioners with regard to your health problems.  It seems that apart from the problems directly resulting from the motor car accident, there have been a number of other health problems that have accumulated over time.  I do not think I need to go into detail about that, but there is no doubt that if I was to have decided to send you to prison immediately those health problems would have had a significant impact on your capacity to deal with the term of incarceration.  It would have been much harder for you than other prisoners without the same physical problems that you have undoubtedly got.  That is an important factor in determining ultimately not to send you to prison.

18You have pleaded guilty.  The plea of guilty was as a result of negotiations with the prosecution.  The delay in the period between you being apprehended and your indicating a willingness to plead which I think occurred in about July last year is pretty substantial.  As I indicated to your counsel during the plea hearing, I do not regard anybody to blame for that, that is just the way the system operates.  Other associated matters were dealt with in a more timely fashion but ultimately your matter resolved.  In part, I think, there were health problems of your own which intervened.  None of that can be regarded as being any fault of yours.   You cannot be said to have contributed to the delay in any culpable way.

19You cannot be given credit for a very early plea, but I think you have to be given full credit for your plea of guilty and saving the State the cost of a trial and the witnesses the inconvenience of having to attend a trial and it is a recognition of your willingness to facilitate the administration of justice. 

20All of that counts in your favour and results in a reduction of what would otherwise have been the appropriate sentence.  It is also consistent with remorse and I have already indicated that I accept particularly from what your character reference referees have said about you, that you are remorseful for your offending conduct.  That, too, is to be taken into account very much on the credit side in determining an appropriate sentence.

21The delay in itself is a substantial factor in reducing the sentence that would otherwise have been appropriate, for a couple of good reasons.  One is  you have had this matter hanging over your head for a significant period of time.  You must have known that you always ran the risk of receiving a term of imprisonment at the end of the day.  Secondly, it has given you the opportunity of going through another four and a half years without having fallen foul of the law again.  You have been able to maintain your business without infringing the terms of the planning permit that enables you to do so.  All of that seems to me to be significant in mitigating the sentence that would otherwise have been appropriate.

22You have no prior convictions and it would be a very significant thing indeed, I think, to send a man of 69 years of age, as you are now, to prison for the first time, particularly given all of those factors and your health problems.

23The other matter of particular significance that was drawn to my attention was the need to ensure that the sentences that I impose upon you bear a proper relationship with the sentences imposed, first upon Mr Wolfe by His Honour Judge Murphy, on 16 November 2011.   His sentencing remarks were provided to me.   Then there were two other cases which came before other judges of this court, firstly the case of the Director of Public Prosecutions v. Yan & Lu, who were sentenced by His Honour Judge Parsons, on 26 July 2013, and the case of the Director of Public Prosecutions v. Tang.  Mr Tang was sentenced by Her Honour Judge Pullen, on 3 October 2013.  In each case they had been sentenced for criminal activity very similar to that to which you have pleaded guilty, involving bribery of Mr Wolfe and carrying on a business as an unlicensed sex service provider.  In Mr Tang's case it was done recklessly.  In the case of Yan & Lu it was done knowingly.

24Mr Wolfe was given an immediate custodial sentence.  Mr Tang was given an immediate custodial sentence in that he was required to serve three months of a total effective sentence of 24 months, the balance being suspended for a period of three years.  Each of Yan & Lu were sentenced to terms of imprisonment, suspended in Yan's case for a period of three years and in Lu's case for a period of 18 months.  Yan was also fined a total of $67,500, made up of fines of $22,500 each for three offences of knowingly conducting the business of a sex worker service provider.  I stress knowingly because it is to be distinguished of course from your offending which was reckless.

25I accept of course that parity is an important sentencing principle and that each of those cases is to be considered carefully in determining an appropriate sentence in your case.  The maximum term of imprisonment for the offence of bribery, the subject of Charge 1, is ten years' imprisonment and for the offence, the subject of Charge 2, it is five years' imprisonment. 

26I have to take into account the maximum terms of imprisonment also.  It is important, it is well recognized by your counsel and he certainly made no bones about the fact that I am required to impose a sentence which expresses the denunciation of this court, of conduct of the kind in which you engaged.  I need to punish you adequately for your offending conduct.  I need to consider the degree to which it is necessary to deter you from committing further offences.  I might say that in that regard I do not think it is likely that you will offend again.  I am as sure as I can be that this will have been a huge shock to you and that these proceedings will have provided all of the deterrence necessary to ensure that you do not offend again.

27The other particularly important consideration is deterring others and that is a particularly important consideration in bribery cases, also in the case of the offence the subject of Charge 2.  Very often bribery offences are difficult to detect.  For all the reasons I have spoken of previously, they are to be regarded as particularly serious by the courts.

28I can tell you that had it not been for your age and your ill health, despite the other mitigating factors, my inclination would have been to impose an immediate custodial sentence, albeit not necessarily requiring you to serve a large amount of time actually in custody.  However, I think on balance that the law permits me to take a more merciful view about your offending conduct and the appropriate sentence.

29I made it clear to your counsel during the course of the plea that I was not going to send you to prison immediately.  I am going to impose a term of imprisonment upon you and I am going to fine you.   For that reason I sought some information about your financial affairs.  I am told that you own your own home and that you have no loan upon that.   It is worth about $800,000.  You are hopeful that the sale contract, that apparently you have, will be settled and that you will receive about $150,000 from the sale of your business.  You apparently have to pay $62,000 in outstanding tax, but that leaves you with a bit left over and no doubt that will be earmarked to assist you to enjoy your retirement along with some other superannuation, the details of which I was not told.  It does not seem that you are a man with enormous wealth, but on the other hand you are in a position to pay a fine of the kind that I would have in mind.

30Doing the best I can to reach a point of parity with the other offenders whose situations may be regarded as comparable and the cases to which I have been referred, I remind myself that each case has to be determined on its own facts.  As I say doing the best I can to identify the sentence which meets all the sentencing requirements including parity, I am ready to impose sentence upon you.  Would you please just listen carefully to what I am about to say.

31On Charge 1, of bribery, I sentence you to imprisonment for a period of six months.

32On Charge 2, of recklessly carrying on a business of a sex service provider, I sentence you to imprisonment for a period of one month. 

33That sentence will be cumulative upon the sentence on Charge 1, making a total effective sentence of seven months.  I order that that sentence be suspended wholly for a period of two years.

34In addition, on Charge 1, I impose a fine of $15,000.

35But for your pleas of guilty, I would have sentenced you to imprisonment for a period of 12 months and I would not have made any order for parole.

36I make the disposal order which is sought, although I think the terms of it need minor adjustment which can be made and when that is done I will sign the order.

37Mr Gipp, I am inclined to give your client six months to pay.

38MR GIPP:  Yes, Your Honour.

39HIS HONOUR:  If he ends up needing more time than that, well he can always come back to court, but that would enable the settlement to take place.

40MR GIPP:  Yes, certainly, Your Honour.  Six months is very generous, thank you.

41HIS HONOUR:  All right.  Are there any other orders I need make?

42MS FLYNN:  No, thank you, Your Honour.

43HIS HONOUR:  Yes.  If you would perhaps have that minor amendment made, it is just as to a date on the schedule that Mr Travers, I think, can do quite quickly and then I can sign the order.

44Mr Hancock, I have no doubt that you have been told this already and if you did not already know, that by suspending the sentence of seven months that I have imposed upon you, it means that you will not have to serve one day of that term of imprisonment, provided you do not commit any further offences punishable by imprisonment in the next two years.  If, however, you do commit an offence punishable by imprisonment in the next two years, you will be in breach of the order and you will be liable to be imprisoned for the whole of that seven month period.

45I must say to you that if you were to be brought back to court in breach of the suspended sentence the very strong likelihood is that you would have to serve that sentence.  Do you understand that?

46OFFENDER:  Yes.

47(Disposal order signed and acknowledged.)

48MS FLYNN:  Thank you, Your Honour.

49HIS HONOUR:  Thank you.

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