R v Minani - [2005] NSWCCA 26

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Potter [2005] NSWCCA 26

FILE NUMBER(S):
2004/2398

HEARING DATE(S): 14/02/2005

JUDGMENT DATE: 18/02/2005

PARTIES:
Rodney Wayne Potter - Applicant
Crown - Respondent

JUDGMENT OF: Bryson JA Barr J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0883

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

COUNSEL:
P Byrne SC - Applicant
GIO Rowling - Respondent

SOLICITORS:
Oates & Smith - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

CATCHWORDS:
CRIMINAL LAW - s249B(1)(a) Crimes Act 1900 - corruptly receive benefit - taking into account past criminal conduct with which offender has not been charged - relevance of good character in breach of trust offence - effect of delay in sentencing - balancing mitigating discounts with objective seriousness of offence.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal against sentence granted. Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2398
BRYSON J
BARR J
HOEBEN J
Friday, 18 February, 2005

REGINA v Rodney Wayne POTTER

JUDGMENT

BRYSON JA: I agree with Hoeben J.
BARR J: I agree with Hoeben J.
HOEBEN J: The applicant, Rodney Wayne Potter, seeks leave to appeal from sentences imposed upon him by his Honour Judge Freeman in the District Court on 17 December 2003. On 26 September 2003 the applicant pleaded guilty at the Downing Centre Local Court to five counts under s249B(1)(a) of the Crimes Act that he did on specified dates between December 1999 and March 2000 corruptly receive a benefit. Three further matters under s249B(1)(a) of the Crimes Act were asked to be taken into account on a Form 1.
Each of the offences carried a maximum term of imprisonment of seven years. In relation to counts 1-4 his Honour sentenced the applicant to imprisonment for 2 years to commence on 17 December 2003 and expire on 16 December 2005. The non-parole period was 9 months to commence on 17 December 2003 and expire 16 September 2004. In relation to count 5 his Honour took into account the Form 1 matters and the applicant was sentenced to a term of imprisonment for 2 years and 6 months to commence on 17 September 2004 and expire on 16 March 2007. The non-parole period was 12 months to commence on 17 September 2004 and expire on 16 September 2005. The sentence on count 5 was therefore cumulative on the earlier sentences. The total non-parole period was 1 year and 9 months.
Factual background
From approximately 1993 until 2000 the applicant was Chief Steward of the Greyhound Racing Control Board (the Board) which became the Greyhound Racing Authority (the Authority). The business of the Board and then the Authority was the control and management of greyhound racing in New South Wales. His duties included ensuring that the greyhound racing industry was run fairly and the supervision of the rules associated with greyhound racing in New South Wales.
In order to understand the charges, it is…

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 Minani

Details

AGLC: R v Minani [2005] NSWCCA 26
Case: [2005] NSWCCA 26
Decision Date: 18 February 2005

CaseChat Overview and Summary

In the case of R v Minani, the applicant appealed against his conviction and sentence for multiple counts of misconduct in public office, contrary to section 249B(1)(a) of the Crimes Act 1900. The appellant had been Chief Steward of the Greyhound Racing Control Board and subsequently the Greyhound Racing Authority, positions of trust that he exploited for financial gain by subverting drug testing procedures over a period of seven to eight years. The misconduct included manipulating random selection processes to avoid testing of dogs suspected of using performance enhancing drugs and destroying or substituting drug test samples. The primary judge sentenced the applicant to a cumulative total of 3 years and 3 months imprisonment with a non-parole period of 1 year and 9 months.

The appeal raised several legal issues concerning the assessment of mitigating factors, the relevance of good character, and the impact of delay in sentencing on the overall sentence. The court needed to determine whether the trial judge appropriately considered the applicant’s early guilty plea, his assistance to the Independent Commission Against Corruption (ICAC), and his good character. Additionally, the court had to assess whether the delay in sentencing warranted a discount and whether the mitigating factors appropriately balanced against the objective seriousness of the offences.

The court found no error in the trial judge's application of the mitigating discounts for the applicant’s early guilty plea and assistance to ICAC and the Authority. The judge correctly acknowledged the appellant’s culpability as high due to his position of trust and the long duration of the misconduct. Although the appellant’s good character was relevant, it did not significantly mitigate the breach of trust. The court also held that the delay in sentencing did not warrant a discount. The overall sentence, considering the principle of totality, appropriately reflected the objective seriousness of the offences, and the cumulative nature of the sentence on count 5 was justified. The appeal was dismissed, and leave to appeal was granted.

Orders

Orders of the court

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Background

Background to the litigation

Each of the offences carried a maximum term of imprisonment of seven years. In relation to counts 1-4 his Honour sentenced the applicant to imprisonment for 2 years to commence on 17 December 2003 and expire on 16 December 2005. The non-parole period was 9 months to commence on 17 December 2003 and expire 16 September 2004. In relation to count 5 his Honour took into account the Form 1 matters and the applicant was sentenced to a term of imprisonment for 2 years and 6 months to commence on 17 September 2004 and expire on 16 March 2007. The non-parole period was 12 months to commence on 17 September 2004 and expire on 16 September 2005. The sentence on count 5 was therefore cumulative on the earlier sentences. The total non-parole period was 1 year and 9 months.Factual background From approximately 1993 until 2000 the applicant was Chief Steward of the Greyhound Racing Control Board (the Board) which became the Greyhound Racing Authority (the Authority). The business of the Board and then the Authority was the control and management of greyhound racing in New South Wales. His duties included ensuring that the greyhound racing industry was run fairly and the supervision of the rules associated with greyhound racing in New South Wales. In order to understand the charges, it is necessary to set out in summary form the corrupt behaviour of the applicant in the period 1993-2000. The Board and its successor the Authority had put in place procedures to prevent the use of performance enhancing drugs. These procedures included the practice of testing dogs which won feature races. The testing was done by taking a urine sample from the dog, securing this in a purpose designed container, sealed with individually numbered aluminium seals, and having the sample conveyed by the stewards to an analytical laboratory. It was there tested for the presence of any prohibited substance. In addition, on each program one or sometimes two races would be randomly selected as those for which the winner would be similarly tested. The random selection of these races was achieved by placing numbered balls in a sack. A volunteer chosen at random would be asked to extract sight unseen a ball the number of which would determine the race on the program of which the winner would be tested. The corrupt conduct of the applicant was designed to subvert these procedures. When forewarned by one of his co-conspirators that a particular dog should if possible not be tested, the applicant would hold in one corner of the sack the numbered ball corresponding to the race in which that dog was entered. Thus the ball would not be available to be withdrawn by the volunteer and the race in which the suspect dog was entered would not be one of those selected for testing. If testing of the dog could not be avoided, eg the dog was the winner of a feature race, then the applicant would destroy the sample taken from that dog and substitute clean urine so that the subsequent testing would not identify the presence of any prohibited substance. Usually the applicant effected this exchange during the delivery of samples to the analytical laboratory.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRYSON J

No error has been demonstrated in his Honour’s application of the discounts which he assessed in respect of the applicant’s early plea of guilty and assistance to ICAC and the Authority. This ground of appeal fails.Conclusion As his Honour appreciated, the applicant’s culpability for the offences with which he was charged was at the top of the range for this type of offence. The very person entrusted with the protection of the greyhound industry in New South Wales was subverting its integrity for financial gain. That situation had continued for seven-eight years. Many innocent persons were adversely affected by the applicant’s conduct – owners, trainers, punters and those who depended upon them. Even if error had been revealed in his Honour’s approach to the sentencing of the applicant, I am of the opinion that the sentences imposed were not excessive and would not require the intervention of this Court. If anything, the sentences of 2 years with a non-parole period of 9 months for counts 1-4 were unduly favourable to the applicant. It was appropriate to make the sentence in relation to count 5 cumulative on the other sentences. Having regard to the objective seriousness of the offences, and the principle of totality, the ultimate result of the sentences imposed – 3 years and 3 months with a non-parole period of 1 year and 9 months – does not reveal error. I propose the following orders:(1) Leave to appeal granted.(2) Appeal dismissed.

Ratio Decidendi

Legal Principle Established

Established by: BRYSON J

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