R v Allan; Ex parte - [2016] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Allan; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 270

PARTIES:

R
v
ALLAN, Alex Escala
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 288 of 2015
DC No 1577 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 3 November 2015

DELIVERED ON:

Orders delivered ex tempore 22 June 2016
Reasons delivered 25 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7 June 2016

JUDGES:

Margaret McMurdo P and Fraser and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Orders delivered ex tempore on 22 June 2016:

1.   Appeal against sentence allowed.

2.   The sentence on count 1 is varied by ordering the offender be imprisoned for a period of 2 years instead of 18 months and that he be released after serving 15 months, instead of 8 months, upon giving security by recognizance in the sum of $1,000.00 conditioned that the offender be of good behaviour for a period of 4 years.

3.   The sentence imposed on count 2 is varied by ordering the offender be imprisoned for a period of 2 and a half years instead of 2 years and that he be released after serving 15 months, instead of 8 months, upon giving security by recognizance in the sum of $1,000.00 conditioned that the offender be of good behaviour for a period of 4 years.

4.   The sentences imposed at first instance are otherwise confirmed.

5. The respondent’s legal representatives are directed to explain to the respondent as soon as possible, in language likely to be understood by him, the purpose and consequences of the sentence in accordance with s 16F Crimes Act 1914 (Cth).

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted of abuse of public office and receiving a bribe – where the respondent was a Commonwealth Department employee and unlawfully approved visas for 59 people – where the respondent received over $560,000.00 in bribes from a co-offender – where the respondent, once arrested, made full admissions and provided high value information that was likely to be crucial in prosecuting a co-offender – where the respondent pleaded guilty at an early stage, was co-operative with authorities and gave an undertaking to provide future co-operation – where the respondent was sentenced to an effective sentence of two years, with release after eight months – where the judge erred in taking into account co-operation other than future co-operation when discounting the sentence under the Crimes Act 1914 (Cth) s 21E – where the respondent’s offending was serious and general deterrence was important – whether the sentence was manifestly inadequate

Crimes Act 1914 (Cth), s 16AC, s 16F, s 21E

Commonwealth Director of Public Prosecutions v Afiouny

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Allan; Ex parte

Details

AGLC: R v Allan; Ex parte [2016] QCA 270
Case: [2016] QCA 270
Decision Date: 22 June 2016

CaseChat Overview and Summary

The appeal was brought by the respondent, Allan, against the sentence imposed by the Federal Court of Australia. Allan was convicted of abuse of public office and receiving a bribe. The charges stemmed from Allan's role as an employee of a Commonwealth Department, where he unlawfully approved visas for 59 individuals and received over $560,000 in bribes from a co-offender. Allan made full admissions upon arrest and provided high-value information crucial to prosecuting his co-offender. He pleaded guilty at an early stage, cooperated with authorities, and undertook to provide future cooperation. The primary judge sentenced Allan to an effective term of two years imprisonment, with release after eight months. Allan argued that the sentence was manifestly inadequate, while the Crown contended that the sentence was appropriate given the mitigating factors and the importance of general deterrence.

The legal issues before the court included whether the sentence imposed was manifestly inadequate and whether the primary judge erred in considering cooperation other than future cooperation when discounting the sentence under the Crimes Act 1914 (Cth) s 21E. The court considered the nature and seriousness of the offending, the importance of general deterrence, and the mitigating factors present in Allan's case. The court also examined comparable cases to ensure consistency in sentencing for federal offences.

The court found that the sentence imposed was manifestly inadequate. The court noted that abuse of public office and bribery are serious offences and Allan's conduct constituted concerning examples of such offences. The court acknowledged the mitigating factors, including Allan's early guilty plea, cooperation with authorities, and remorse. However, the court emphasised the importance of general deterrence and the need for a significant term of imprisonment for such offences. The court varied the sentence, ordering Allan to be imprisoned for two years with release after 15 months, and confirmed the sentences imposed on the other counts with similar adjustments.

ORDERS:
1. Appeal against sentence allowed.
2. The sentence on count 1 is varied by ordering the offender be imprisoned for a period of 2 years instead of 18 months and that he be released after serving 15 months, instead of 8 months, upon giving security by recognizance in the sum of $1,000.00 conditioned that the offender be of good behaviour for a period of 4 years.
3. The sentence imposed on count 2 is varied by ordering the offender be imprisoned for a period of 2 and a half years instead of 2 years and that he be released after serving 15 months, instead of 8 months, upon giving security by recognizance in the sum of $1,000.00 conditioned that the offender be of good behaviour for a period of 4 years.
4. The sentences imposed at first instance are otherwise confirmed.
5. The respondent’s legal representatives are directed to explain to the respondent as soon as possible, in language likely to be understood by him, the purpose and consequences of the sentence in accordance with s 16F Crimes Act 1914 (Cth).

Orders

Orders of the court

Orders delivered ex tempore on 22 June 2016:

1. Appeal against sentence allowed.

2. The sentence on count 1 is varied by ordering the offender be imprisoned for a period of 2 years instead of 18 months and that he be released after serving 15 months, instead of 8 months, upon giving security by recognizance in the sum of $1,000.00 conditioned that the offender be of good behaviour for a period of 4 years.

3. The sentence imposed on count 2 is varied by ordering the offender be imprisoned for a period of 2 and a half years instead of 2 years and that he be released after serving 15 months, instead of 8 months, upon giving security by recognizance in the sum of $1,000.00 conditioned that the offender be of good behaviour for a period of 4 years.

4. The sentences imposed at first instance are otherwise confirmed.

5. The respondent’s legal representatives are directed to explain to the respondent as soon as possible, in language likely to be understood by him, the purpose and consequences of the sentence in accordance with s 16F Crimes Act 1914 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent contended that the ultimate combined discount, reducing the sentence of four years imprisonment to two years imprisonment with release after eight months, was a sound exercise of the sentencing discretion; the appeal should be dismissed.Conclusion Abuse of public office and bribery are serious offences and the respondent’s conduct constituted concerning examples of those offences. His behaviour was the antithesis of the public service he was employed to provide. The taking of bribes by officers of the executive arm of government undermines the essence of the honest governance expected by all Australians as a given. Despite his secure, reasonably paid employment, he seriously betrayed the trust the community had placed in him by accepting bribes to grant visas to those who were ineligible. Save in exceptional circumstances, such offending calls for a significant term of actual imprisonment to denounce the conduct, punish the offender, and deter others from committing such offences. The respondent’s case had significant mitigating features. He pleaded guilty at an early stage, was extremely co-operative with authorities and had undertaken to further assist the police in the prosecution of Lam. He was unlikely to re-offend and was remorseful. In determining the appropriate sentence, and in achieving consistency in sentences for federal offences, this Court should consider sentences imposed for like offending throughout Australia.[16] Thankfully, this type of offending is rare in Australia. None of the cases to which the primary judge and this Court have been referred closely resemble this matter. But, as the parties recognised, some general guidance can be obtained through a consideration of Bruce, Tae and Afiouny.[16]Hili v The Queen (2010) 242 CLR 520, [56] – [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Bruce was a counter officer with a Commonwealth Department whose duties included deciding applications for tourist (long stay) visas, resident return visas and student permission to work visas. He worked corruptly with a South Korean man, Seung Tae Kim, to grant between four and six visa applications weekly. Kim introduced Bruce to Cheung Pong Tae who paid Bruce between $50.00 and $100.00 for each visa application approval, almost all of which should not have been made and were contrary to migration policy or legislation. The offending involved almost 50 approvals and about 30 illicit extensions over a period of years for which Bruce received between $2,500.00 and $10,000.00. He did not co-operate with police at an early stage although he pleaded guilty. He was unlikely to re-offend. The sentencing judge noted that general deterrence was important. Bruce was a bright man who was extremely unhappy in his job. He had published a detailed and scholarly book which was highly regarded in the international world of ornithology. He cared for his elderly, hearing-impaired mother who was in her mid-80’s and he and his partner had an eight year old daughter. Money was not his motivation for offending; it was a misguided protest against what he saw as unfair treatment by his superiors at work. At the time he had profound personal problems due to the break-up of his former marriage and the death of his father. The judge gave a 20 per cent discount for the timely plea of guilty and imposed a global sentence of three years and three months imprisonment with release after two years.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Allan; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 270
PARTIES:	R v ALLAN, Alex Escala (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S:	CA No 288 of 2015 DC No 1577 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Director of Public Prosecutions (Cth)
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 3 November 2015
DELIVERED ON:	Orders delivered ex tempore 22 June 2016 Reasons delivered 25 October 2016
DELIVERED AT:	Brisbane
HEARING DATE:	7 June 2016
JUDGES:	Margaret McMurdo P and Fraser and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Orders delivered ex tempore on 22 June 2016: 1. Appeal against sentence allowed. 2. The sentence on count 1 is varied by ordering the offender be imprisoned for a period of 2 years instead of 18 months and that he be released after serving 15 months, instead of 8 months, upon giving security by recognizance in the sum of $1,000.00 conditioned that the offender be of good behaviour for a period of 4 years. 3. The sentence imposed on count 2 is varied by ordering the offender be imprisoned for a period of 2 and a half years instead of 2 years and that he be released after serving 15 months, instead of 8 months, upon giving security by recognizance in the sum of $1,000.00 conditioned that the offender be of good behaviour for a period of 4 years. 4. The sentences imposed at first instance are otherwise confirmed. 5. The respondent’s legal representatives are directed to explain to the respondent as soon as possible, in language likely to be understood by him, the purpose and consequences of the sentence in accordance with s 16F Crimes Act 1914 (Cth).
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted of abuse of public office and receiving a bribe – where the respondent was a Commonwealth Department employee and unlawfully approved visas for 59 people – where the respondent received over $560,000.00 in bribes from a co-offender – where the respondent, once arrested, made full admissions and provided high value information that was likely to be crucial in prosecuting a co-offender – where the respondent pleaded guilty at an early stage, was co-operative with authorities and gave an undertaking to provide future co-operation – where the respondent was sentenced to an effective sentence of two years, with release after eight months – where the judge erred in taking into account co-operation other than future co-operation when discounting the sentence under the Crimes Act 1914 (Cth) s 21E – where the respondent’s offending was serious and general deterrence was important – whether the sentence was manifestly inadequate Crimes Act 1914 (Cth), s 16AC, s 16F, s 21E Commonwealth Director of Public Prosecutions v Afiouny