R v Conte

[1992] QCA 174

IN THE COURT OF APPEAL  [1992] QCA 174

SUPREME COURT OF QUEENSLAND

C.A. No. 203 of 1991

T H E   Q U E E N

v.

VITTORIO CONTE
  (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

JUDGMENT - THE COURT

Delivered the Sixth day of July 1992

Vittorio Conte was on 6 August 1991 convicted in the District Court of four counts of corruption, each of which was in substance a charge of having corruptly promised to give one Jack Reginald Herbert sums of money for protection in relation to various laws:  as to the first conviction, laws relating to gaming;  as to the second, laws relating to gaming and prostitution;  as to the third, laws relating to gaming, prostitution and supply of liquor;  and as to the fourth, laws relating to gaming.  The applicant initially sought leave to appeal against sentence, but that application has been abandoned;  the Crown has appealed on the ground that the sentence is insufficient and inadequate.  The sentence imposed in each case was seven years, with a recommendation that Conte be eligible for release on parole after two years.

The Crown's written submission attacked the head sentence of seven years as being too light, but in his oral argument, Mr. F. Clair, who appeared for the Crown, practically confined his attack to the recommendation for parole, saying that there was no foundation for it.  In his remarks on sentence, the learned District Court judge did not give any specific reason for the recommendation.  His Honour said, in effect, that certain of the witnesses were corrupt before any payment was made and that the offences were serious.

The Crown case was that Conte and one Bellino were involved together in bribing Herbert over a period of some years to protect their illegal activities.  These included, as the charges indicate, prostitution, gambling and illegal liquor sales.  The amounts paid were very substantial and appear to have been about $1m.

Conte, who pleaded not guilty, was tried with Bellino and both were convicted of these offences after a long trial.  Bellino successfully appealed against his conviction on a ground which was held not to affect Conte;  a new trial was ordered in respect of Bellino.

On the face of it, one has convictions in respect of bribery over a long period and in large sums.  Conte had previous convictions for numerous offences, none of which produced a gaol sentence and most of which had to do with selling liquor without a licence;  there were also gaming and prostitution offences.

The principal point taken by the Crown is that if one accepts that the head sentence was a reasonable one, there is no discernible basis for making the concession of a recommendation for early parole.  It must be said that at first sight it appears a startling result that a person convicted of corruption on this scale could be released within two years of conviction.

Mr. McMillan, who appeared for Conte, advanced a number of arguments.  Chiefly they were that, as the judge had pointed out, Herbert and the persons to whom he passed on bribe money were already corrupt before Herbert was paid any of the money involved in the case;  that gambling of the kind for which protection was paid was tolerated, as was prostitution;  that since his imprisonment, Conte had been a good and useful gaol inmate, showing a tendency towards rehabilitation;  that at the trial Conte made little attack upon Crown witnesses;  that the offences of which he had been convicted were victimless;  that the judge had the advantage of the atmosphere of the trial and this might have been useful;  and that the Crown had been guilty of delay.

The point last mentioned seems to have little substance, since the principal reason for the delay in disposing of this matter was that as to both Conte and Bellino there were complex and lengthy hearings of appeals against conviction;  it was agreed that the appeals against sentence should be disposed of after judgment was given in the appeals against conviction.  Further, it is admitted that the appeals were adjourned twice last year at the request of the appellants.

It does not appear to us that special circumstances need to be shown to justify such a recommendation as the judge made.  But some justification must be seen;  if one accepts that the seven year head sentence was not too heavy, as it seems clear that it was not, one tends to look for some reason for the early recommendation for parole.  Conte pleaded not guilty and there is absolutely no indication of contrition.  As for Herbert's being already corrupt, it is our opinion that the law should endeavour strongly to discourage corruption among police by punishment of those who bribe as well as those who are bribed.  That the latter were, it is said, already corrupt cannot excuse the former.  The selection of those who are prosecuted for committing breaches of the law cannot depend on whether the prospective defendants pay money to the police;  if it were to do so, the administration of our laws would come to be held in well-deserved contempt.  This Court should not create the impression that bribery on the scale found to have occurred here is regarded as a matter of no great seriousness. The dangers to the very fabric of society of a corrupt police force are obvious and need no emphasis from us.

We have come to the conclusion that the judge's recommendation for parole constituted excessive leniency and should be set aside.  The Attorney-General's appeal will be allowed to that extent.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 203 of 1991

T H E   Q U E E N

v.

VITTORIO CONTE
  (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

_______________________________________________

Mr. Justice Pincus
   Mr. Justice McPherson
  Mr. Justice Demack

_______________________________________________

Judgment of the Court delivered on 6th July, 1992.

_______________________________________________

ATTORNEY-GENERAL'S APPEAL AGAINST SENTENCE ALLOWED TO EXTENT OF SETTING ASIDE THE RECOMMENDATION THAT MR. CONTE BE ELIGIBLE FOR PAROLE AFTER TWO YEARS.

_______________________________________________

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 203 of 1991

Before the Court of Appeal

Mr. Justice Pincus

Mr. Justice McPherson

Mr. Justice Demack

T H E   Q U E E N

v.

VITTORIO CONTE
  (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

JUDGMENT - THE COURT

Delivered the Sixth day of July 1992

MINUTE OF ORDER:The Attorney-General's appeal against sentence is allowed to the extent of setting aside the recommendation that Mr. Conte be eligible for parole after two years.

CATCHWORDS:   CRIMINAL LAW - SENTENCE - Attorney-General appeals against sentence of 7 years with recommendation after 2 for 4 X corruption - whether recommendation constituted excessive leniency given extent of offences, not guilty plea and absolutely no indication of contrition - recommendation deleted.

Counsel:            F. Clair for the Crown
  W. McMillan for the Respondent      

Solicitors:The Special Prosecutors Office for the Crown

The Legal Aid Office for the Respondent

Hearing Date(s):     2 June 1992