R v Michael

[1996] QCA 430

[1996] QCA 430

COURT OF APPEAL

DAVIES JA
DERRINGTON J
AMBROSE J

CA No 364 of 1996

THE QUEEN

v.

JOHN WALLINGTON MICHAEL  Applicant

BRISBANE

..DATE 23/10/96

JUDGMENT

DERRINGTON J:  The applicant is a 53-year-old former civil engineer who was employed by the Railway Department as a construction inspector.  He was convicted, after a trial, of official corruption and sentenced to 18 months imprisonment and it is against that sentence that he appeals.  The gist of the appeal is that some recommendation for early parole should be made, having regard to personal considerations of the applicant.

The circumstances of the offence are that the applicant demanded from a tenderer for work with Queensland Rail, in respect of matters that came within the applicant's authority, a sum by way of a pay off to ensure that the tenderer received the work.  The alternative was put to the tenderer that the failure to come into the scheme would mean that he would be unsuccessful. 

It was a serious case of official corruption, particularly as the applicant was the instigator of the arrangement.  He overbore the other party and indeed might be said to have been greedy by demanding what would be regarded as being an excessive sum in relation to the amount of the work obtained.  He had no previous convictions except for drink driving offences, the most recent of which was 10 years ago.  Unfortunately he showed no signs of remorse and contested the charge against him, even to the extent of making false allegations against the man from whom he had extorted the money.

The features that are advanced in his favour indicate that he has suffered some personal misfortune in that, having suffered a physical injury, he had been unable to continue in his profession as a civil engineer and was forced to take work of a lower rank, namely, that in which he was engaged at the relevant time.

There are references that were tendered that suggest that his behaviour on this occasion was uncharacteristic; but these must be approached with a certain degree of caution, having regard to the applicant's persistence and insistence in his commission of the offence.

Another personal feature advanced by way of mitigation is that as the result of this offence he will certainly lose his job, and at the age of 53 will have considerable difficulty in finding other suitable work.

It is also said that his conduct at the time might be explained to some extent in that his circumstances, following upon his accident in 1986, caused him depression and led to his engaging in heavy drinking.  There are certainly some unfortunate personal features which should be taken into account. 

As against that, the corruption on this occasion was clear, and totally at the applicant's instigation; perhaps even his insistence.  Unfortunately he has shown no remorse.  Corruption of this nature is a very serious offence and deterrence is a very important feature of the sentencing process in a matter such as this.

It is impossible to say that the learned trial Judge did not take into account the personal factors that might have led to some degree of mitigation and, in my view, the sentence imposed adequately reflects any of those features.  The sentence imposed had to be substantial, having regard, most of all, to the serious nature of the offence on the one hand and the lack of remorse on the other.  Consequently there is no reason for finding that the sentence imposed was manifestly excessive and the appeal should be dismissed.

DAVIES JA:  I agree.

AMBROSE J:  I agree.

DAVIES JA:  The application is refused.

-----