Good v Wood

[1990] TASSC 107

Serial No B30/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Good v Wood [1990] TASSC 107; B30/1990

PARTIES:  GOOD
  v
  WOOD

FILE NO/S:  LCA 3/1990
DELIVERED ON:  27 June 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B30/1990
Number of paragraphs:  14

Serial No B30/1990
List "B"
File No LCA 3/1990

GOOD v WOOD

REASONS FOR JUDGMENT  CRAWFORD J

27 June 1990

1. The applicant has moved this court to review a sentence of two months imprisonment imposed by a Court of Petty Sessions on a charge of offering, on 27 October 1989, a $500 cash bribe to a police officer, Constable Priest, in an attempt to induce him to neglect his duty contrary to s.35 of the Police Regulation Act 1898. He pleaded not guilty to the charge. A perusal of the transcript of the hearing shows that it was inevitable that he would be found guilty. His evidence was that he had no memory of the circumstances surrounding the making of the bribe, although he had some memory of the events leading to him being taken to the police station.

1. He had consumed a substantial amount of alcohol on the night in question. At about 11.30pm he was seen by Constable Priest and 1st Class Constable O'Connell to be driving a vehicle at Ulverstone. On being spoken to he refused to go to the police station, there was a brief struggle and he was placed in custody for the purpose of being taken there for a breath analysis. His eventual breathalyser reading was .201 grams of alcohol per 100 millilitres of blood, a high reading.

1. There was evidence that he was affected by the alcohol he had consumed. When being conveyed in the police vehicle to the police station he was mumbling to himself about being "picked on". According to one officer he "said some rude and crude things". He was "to quite a degree" intoxicated. One officer agreed that his speech was "somewhat incoherent at times". Another officer said that "he'd had a few...... I considered that he'd had quite a bit to drink...I would say that he was fairly well on the way....he was breathing fumes all over me.....I'd agree that he certainly looked like he had been drinking.....he just had the general look of someone who spent a fair bit of time drinking.....".

1. At the police station the applicant sat in a room with the two officers, waiting for the arrival of a breath analysis unit from Burnie. He approached Constable Priest and said to him, in the presence of 1st Class Constable O'Connell:– "I'll give you $500 to forget this". Constable Priest replied:– "You can stop talking like that or you'll end up in real trouble". The applicant then placed ten $50 bank notes on the desk directly in front of Constable Priest and 1st Class Constable O'Connell. Constable Priest said:– "Don't be so stupid, put it back in your pocket". The applicant said :–"I'll give you more if you like – I don't need this shit". Constable Priest said:– "Don't be stupid, put it away". The applicant then put the money back in his pocket. He subsequently provided a sample of his breath for analysis.

1. In the course of giving reasons for finding the charge proved, the learned magistrate said that both police officers conceded that the defendant was drunk, but that description "was circumscribed by qualification which included evidence of the fact that he could not be described as being say drunk and incapable".

1. Of relevance was a conviction in June 1989 of driving a motor vehicle while the amount of alcohol in his blood exceeded the prescribed quantity of .50 gram of alcohol per 100 millilitres of blood. On that occasion he had been fined but not disqualified.

1. In mitigation of penalty, his counsel informed the magistrate that he was 36 years of age, married with two children aged 8 and 6 years respectively. He was a partner in a panel beating, spray painting and towing business at Penguin. His asset position was good and his annual income in the vicinity of $35,000. He was a former senior football player and had been active in other sports. References tendered to the court stated that he came from a respected and stable family background.

1. When sentencing, the learned magistrate had the following to say:–

"Yes, could I take into account what has been advanced on your behalf by your counsel, you're a man without any similar prior convictions, but there again that ought not be surprising as one can't imagine that there would be many cases where people similar (sic) prior convictions for attempted bribery. You're a man who is successful in the community, you've given a lot of pleasure to the community in your sporting prowess, and I take note of those factors. You've been found guilty of attempting to bribe a police officer. Your purpose was to escape justice. It was in relation to a serious offence, not merely a minor transgression. In fact, it was in relation to a probable, and it was later confirmed, a charge of exceed .05 where your reading was later found to be 0.201. In those circumstances one could reasonably anticipate as I have no doubt that you did that conviction would gravely inhibit if not disrupt or even destroy your lifestyle, perhaps even your livelihood for a significant period of time. What I'm saying in other words is that you had a lot to gain if your bribe had been accepted and you knew it. No doubt that is the reason why you offered a substantial enough sum to act as a temptation and even offered to increase it, if not accepted as sufficient, for the risk that you're asking the police to take, and to avoid your otherwise inevitable fate. Bribery or trying it on, when it amounts to a direct attack on the criminal justice process as yours did, must be firmly repelled. The consequences otherwise could allow for the growth of an ever spreading cancer infecting the organs of the State and adversely affecting citizens' rights. Where found therefore, it should be excised rigorously enough to deter others who might be tempted to follow suit. In other words deterrence is the overriding aspect in a case such as this. I do however note your personal circumstances and take those into account as much as I feel able to. In my view however, anything less than an immediate custodial sentence would amount to paying no more than lip service to the principle of deterrence. As I've said, I take into account all of those individual factors which have been advanced on your behalf, including of course the degree which you may have been affected and no doubt were by alcohol. But individually and collectively they are set at nought by the requirements of justice to both assert and protect itself and in consequence those who live under it and need its protection. You're convicted and sentenced to a term of two months imprisonment."

1. One ground of the motion is that the learned magistrate "erred in law in holding that for the purpose of imposing sentence in the facts and circumstances of this case no weight should be given to the prior good record of the accused." There is an apparent conflict in what the learned magistrate said. He said that he took the applicant's personal circumstances "into account as much as I feel able to", and he went on to say that he took into account "all of those individual factors which have been advanced on your behalf", but he then said that "individually and collectively they are set at nought by the requirements of justice ...". The question raised by these statements, and by the ground, is whether the learned magistrate only took the personal circumstances of the applicant into account when first considering the appropriate sentence, but then rejected them from his mind as being of no weight whatever in the circumstances of the case.

1. The application can only be determined upon a consideration of what the learned magistrate said, not what he might have said if the point raised by this ground had been drawn to his attention. I am left uncertain and feel obliged to determine the point in favour of the applicant, justice to him being determinative and not any sense of fairness to the magistrate and the words he chose to use when imposing sentence.

1. Counsel for the respondent conceded that if the learned magistrate meant literally what he said, that is that the matters raised by the applicant's counsel were "set at nought by the requirements of justice" this ground should succeed. Those being the words used, I so hold. I do not disagree with the statements reflecting the seriousness with which the courts should approach attempts to bribe police officers. But this is a case where there were a number of circumstances which should have been taken into account when considering the appropriate penalty, and in mitigation of it. They included:–

1The offence was committed without premeditation.

2Clearly he was substantially affected by the alcohol he had consumed. For the purposes of this case I adopt what is said in Sentencing: State and Federal Law in Victoria, Fox and Freiberg, Oxford University Press 1985 at pp471 and 472:–

"Alcohol is well known as a disinhibitor. Where its intake has led to a diminution of self control, its contribution to the crime will be regarded as mitigatory provided that the court is satisfied that the behaviour is out of character and unlikely to be repeated. The maximum mitigatory effect of such a plea will usually occur where the offender otherwise has a blameless character and has no prior convictions. Lack of premeditation is, of course, a mitigatory factor in its own right. Though intoxication per se is no defence, like mental abnormality it may be regarded as affecting the degree of culpability for the purpose of sentencing."

1. There are, of course, many cases where the affects of alcohol are not mitigatory, such as in some cases involving violence (see for example Sewell (1981) 5 A Crim R 204 at 207) and cases of dishonesty. As was said by Fox and Freiberg at p472:–

"Intoxication is not always an extenuating factor. Where an offence is very grave and deterrence becomes the predominant factor, the mitigating aspects of the offence may be overridden."

3The offering of the bribe was done in the presence of two police officers, at a time when they were waiting for the arrival of at least one other officer from Burnie who was to take the sample of breath from the applicant. The attempt was poorly conceived and unlikely to succeed.

4The applicant was generally of good character, although there can be excepted from this comment his tendency to consume alcohol to excess and to drive with excessive alcohol in his blood.

5Taking into account his general good character, and lack of relevant convictions, it is unlikely that he will similarly offend again.

1. There are sentencing options available which are sufficient to emphasise to the applicant and others the seriousness of his offence, without having to resort to the severe penalty of imprisonment. I do not denigrate the attempts of the learned magistrate to emphasise the need for concern by courts when faced with efforts to pervert the course of justice. But the circumstances of this case did not require actual imprisonment of this man to emphasise that concern, nor did they require the setting at "nought" of the matters I have referred to concerning him when considering the appropriate sentence.

1. For the above reasons the application should succeed. The sentence imposed by the learned magistrate will be set aside. It was agreed by counsel that in such event I should impose the sentence I see as appropriate, and in this regard and in the circumstances of the case, an order requiring community service is sufficient by way of punishment and deterrence to the applicant and similarly minded offenders. In place of the sentence imposed by the learned magistrate there will be an order pursuant to s11(1) of the Probation of Offenders Act 1973 that the applicant attend at such place and times as shall be notified to him in writing by a probation officer or a supervisor for 84 hours community service.