R v Rouse
[1990] TASSC 66
•19 October 1990
Serial No 64/1990
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: R v Rouse [1990] TASSC 66; A64/1990
PARTIES: R
v
ROUSE, Edmund Alexander
FILE NO/S: CCA 25/1990
DELIVERED ON: 19 October 1990
DELIVERED AT: Hobart
JUDGMENT OF: Cox, Underwood and Wright JJ
Judgment Number: A64/1990
Number of paragraphs: 30
Serial No 64/1990
List "A"
File No CCA 25/1990
THE QUEEN v EDMUND ALEXANDER ROUSE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
UNDERWOOD J
WRIGHT J
19 October 1990
Order of the Court
Application for Leave to Appeal refused.
Serial No 64/1990
List "A"
File No CCA 25/1990
THE QUEEN v EDMUND ALEXANDER ROUSE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
19 October 1990
The Attorney–General seeks leave to appeal against the sentence imposed on the respondent upon an indictment charging one count of offering a bribe to a Member of Parliament, contrary to s72 of the Criminal Code, and one count of improper use of position as an officer of a company, contrary to s229(4) of the Companies (Tasmania) Code. The learned judge at first instance did not impose a global sentence upon the whole of the indictment but, as he was entitled to do, imposed separate sentences on each count. On the first he imposed a sentence of three years' immediate imprisonment and on the second he fined the respondent the sum of $4,000.00.
The grounds of appeal are as follows:
"1That his Honour erred in that he failed to give any, or sufficient, weight to the question of personal deterrence.
2That his Honour erred in that having characterised the conduct of the Respondent relevant to the conviction for Offering a Bribe to a Member of Parliament as a 'grossly criminal attempt to interfere in a most basic way with legitimate executive Government, and with the result of a democratic election' he failed to impose a sentence which:
(a)reflected the seriousness of the Respondent's conduct; and
(b)would act as a general deterrent.
3That the sentence of three years' imprisonment with a fine of $4,000.00 imposed by his Honour was manifestly inadequate having regard to all the circumstances of the case."
The facts giving rise to this highly publicised matter can be stated shortly. On 12 May 1989 a general election was held for the State House of Assembly, the Liberal Party until then having held Government with a majority on the floor of the House. When the polls were declared on 29 May 1989 that majority had been lost and Liberal members numbered 17, one short of a majority in the 35 member House. The remaining seats were held by 13 Labour members and five Independents. In these circumstances the possibility existed that the Liberal Government could maintain office with support from all its own members and one or more of the remaining members or that the Labour Party would displace it if it could rely on the support of all its members and that of all the Independents. The possibility that a further election might be held also existed.
One of the newly elected members for the Division of Bass who was a member of the Labour Party, was Mr James Cox, a former radio and television announcer who had at one time in his career been employed by the publicly listed company, Examiner Northern Television Ltd. (ENT), of which at the time the respondent was Chairman of Directors and along with his immediate family, a substantial shareholder. The respondent, using as an intermediary another former employee of ENT then resident in Victoria, one Aloi, offered Mr Cox a bribe of $110,000.00 if he would cross the floor of the House in support of the Liberal Government. The money was to be paid in instalments, 55,000.00 upon Mr Cox agreeing to contact the then Premier, a further $5,000.00 when he in fact contacted the Premier and $25,000.00 per year for four years after having crossed the floor. All payments were to be in cash.
In furtherance of this plan the respondent, using officers of the company ignorant of his purpose, procured $10,000.00 in non–consecutively numbered bank notes from a bank safe deposit box belonging to the company and personally put 85,000.00 into a plain envelope and a further 85,000.00 into a "post–pale". Assisted by his secretary, the respondent assessed and affixed the appropriate postage stamp. On 13 June 1989 he flew to Melbourne where he met Aloi by arrangement at an airport lounge, put the proposal to him and handed over one of the parcels containing $5,000.00. Aloi, after telephoning Mr Cox who at first thought it a prank, despatched that sum through the post to him. Upon its receipt Mr Cox informed the police and surveillance was put in place. The respondent arranged for the despatch to Aloi of the second parcel of $5,000.00 which was to be sent on in due course to Mr Cox if he should cooperate. At the time of doing so he remarked to his secretary, "I could go to gaol for this". On 22 June 1989 the respondent, while passing through Melbourne airport, happened upon the then Attorney–General for Tasmania and commented to him in a brief discussion on the as yet unresolved political situation, "there is a loose cannon on the Labour Party ship".
As the result of the police surveillance, Aloi was arrested on the evening of the same day at a telephone box in Melbourne as he was telephoning Mr Cox in Launceston. Thereafter the second package containing $5,000.00 was recovered from Aloi's desk where it was awaiting collection by him. Further enquiries were made and on 27 June 1989, the respondent was interviewed by detectives at the Launceston CIB office after he had had the opportunity of speaking to his solicitor. The substance of the bribery attempt and his part in it were outlined to him and to each question asked he replied, "No comment". He was at first charged in Victoria jointly with Aloi, who still awaits trial in that State. However, after consultation between Victorian and Tasmanian authorities, it was decided to proceed against the respondent in Tasmania. It is a matter of history that the Liberal Government resigned in the wake of the election and a Labour Government was formed with support from the five Independents.
The respondent at first pleaded not guilty to the charges levelled against him, but changed his Plea to guilty upon his arraignment on 30 April 1990. After hearing the Director of Public Prosecutions and counsel for the respondent, his Honour remanded the respondent in custody and passed sentenced on 7 May 1990. The prison terms runs from that date.
The respondent is 64 years of age, he has no previous convictions, he is a well known and, until this incident, was a highly respected member of the community. He was known as an upright business man of considerable acumen, personal wealth and influence. Mainly through his company's resources he had extended assistance to many philanthropic organisations and individuals in need, expending much personal energy in doing so. He had been honoured in the Queen's Birthday Honours List and was Chairman of the Tasmanian State Institute of Technology in Launceston. His achievements are legion. For such a man the disgrace of conviction on his own plea, coupled with deprivation of liberty for a term of three years, and the disqualification consequential upon conviction on the second count from holding office as a director or manager of a company for five Years after his release from orison without leave of the court, constitute a powerful deterrent against repetition of any criminal activity. In The Queen v Jackson (1987) 30 A Crim R p230 Roden J, when passing sentence on a Minister of the Crown found guilty of conspiracy involving the receipt of bribes by him in consideration of the early release of prisoners facilitated by him as Minister for Corrective Services, said (at p246):
"I do not subscribe to the view that in matters of this nature, a long prison sentence has a greater deterrent effect than a relatively short one. It is fatuous to suggest that a Minister who would be deterred by the prospect of a ten year sentence, from selling favours as Mr Jackson has done, would not be equally deterred by the prospect of a five year sentence. It is the denunciatory aspect of sentence which I believe is significant in these matters."
I respectfully agree insofar as his Honour's comments are directed to the aspect of personal deterrence. If the respondent is not personally deterred by a sentence of three years' imprisonment, I can only suppose that he would be indifferent to any form of punishment.
However some emphasis was placed in considering the need for personal deterrence upon the fact (as it was asserted by the Crown) that the respondent had shown no remorse for his conduct. The learned sentencing judge made no specific finding as to the existence or otherwise of remorse. The Crown urged upon us that on the material before his Honour none could be inferred. The learned Director of Public Prosecutions drew our attention to an assessment by Dr. Bartholomew, an experienced forensic psychiatrist, called by the respondent on the plea in mitigation, in which the doctor said:
"Suffice it to say that Mr Rouse now recognises, in the cold light of day, that to indulge in such behaviour was 'stupid' and 'bloody silly' – but this is after being apprehended and being interviewed by both legal and medical Practitioners. "
This assessment however, was not of the respondent's appreciation of his own culpability but rather of the ineptitude or otherwise of the means he used to advance his purpose. Before his Honour, Mr Hedigan QC for the respondent claimed that his client well recognised that he engaged in serious misconduct and that there had been no conscious self acquittal for him.
In my view whether or not the materials justified a finding one way or the other, it is not apparent from his Honour's comments what significance, if any, he gave to the presence or absence of remorse in the disposition of this case. For my own part, even if I were persuaded that there was no remorse on the respondent's part, in the circumstances of this case I would not consider a heavier sentence thereby warranted to serve the purpose of personal deterrence. I consider there is no substance in ground 1.
Ground 2 complains that the sentence does not adequately reflect the seriousness of the respondent's conduct and will not act as a general deterrent. As will have been seen from the full text of the grounds set out above, the Crown concedes that his Honour characterised the offer of a bribe as "a grossly criminal attempt to interfere in a most basic way with legitimate executive Government and with the result of a democratic election." There was no lack of recognition by his Honour of the seriousness of the respondent's conduct in offering the bribe, while in respect of the improper use of the respondent's position as an officer of a company, his Honour observed, "it is difficult to imagine a more improper use of corporate monies than to employ them in the course of trying to bribe a Member of Parliament, but I accept your statement that you intended to return the money and use your personal funds." (The money was in fact repaid to the company by a cheque drawn on the joint account of the respondent and his wife on 24 July 1989). For the court to intervene on grounds 2 or 3 which alleges manifest inadequacy, the Crown must show that his Honour has made some error in exercising the sentencing discretion. In House v The King (1936) 55 CLR 499, in the well known passage of the joint judgment of Dixon, Evatt and McTiernan JJ at p505, a number of errors are instanced, and the court acknowledged that although it might not appear how the primary judge had reached the result embodied in his order, nevertheless if upon the facts it is unreasonable or plainly unjust, the appellate may infer that in some way there has been a failure properly to exercise the discretion which the law imposes in the court of first instance (and see also Cranssen v The King (1936) 55 CLR 509 at p520). In the present case no specific error can be demonstrated by the Crown and it must rely upon the alleged lenity of the sentence for the inference that some error has occurred.
In Lovegrove v The Queen [1961] Tas SR 106, Burbury CJ said:
"It is true that in determining the appropriate punishment for a crime the court in Tasmania under the Criminal Code has a flexible discretion. It is sometimes said that the court can do anything from fining a man to imposing a sentence of 21 years' imprisonment for any crime. That is not really the situation at all, because it is a discretion which must be exercised judicially in accordance with reason and justice. It does not mean that because the Code itself does not differentiate between crimes so far as punishment is concerned the court does not put crimes into various categories of gravity. The court has for itself placed the various crimes under the Code into different categories of gravity and for itself as guided by the collected wisdom of judges here and elsewhere has set ranges of sentences appropriate to various crimes according to their gravity."
The crime of bribing [or offering to bribe] a Member of Parliament is rarely dealt with by the courts and there are no recorded sentences in respect of it in this jurisdiction. The court does not therefore have any generally accepted parameters to the range of sentences appropriate to this crime. It is true there have been instances of corruption of and by persons in official positions elsewhere (see for example R. v Connolly & Sleeman [1922] St R Qd 278; Reg v Bruneau (1964) 1 CCC 97; Williams v the Queen (1978) 45 FLR 367; George, Harris and Hilton v the Queen (1987) 29 A Crim R 380; Jackson and Hakim v the Queen (1988) 33 A Crim R 413; Reg v Bushe–Jones (1988) 39 A Crim R 79) but the circumstances have been so different that in my view the sentences imposed afford little guidance to what is appropriate to the case in hand.
I accept that the bribe offered was not, as is often the case, directed to procuring a single favour (commercial or otherwise) but that if accepted and acted upon it might have prevented the change in government which did occur, or might have led to a fresh election. Had he been successful, the respondent would have put at naught the results of the election already held and would have imposed his own will upon the electorate notwithstanding the preferences the electorate had expressed. In using the means he did the respondent was guilty not only of a very serious crime against the community at large, but it should be remembered that the crime, by its very nature, involves the attempted corruption of another. Furthermore, the respondent's guilt is, in my view, magnified by the fact that he involved a third person, Aloi, in his illegal activities and instigated him to make the offer. I also accept that this is not a case of a single impulsive act. He persisted in his criminal activities for a period of some ten days before his accomplice was detected and the scheme aborted. He recognised, as his comment to his secretary shows, that if detected he could be imprisoned.
For such a crime a substantial period of imprisonment is not merely justified but clearly demanded notwithstanding the previous good character of the respondent and his many praiseworthy attributes and achievements. Such matters are entitled to some weight in determining the appropriate penalty as his Honour clearly acknowledged, but while capable of mitigating penalty to some degree, in cases such as the present they cannot be allowed to outweigh the need to express in tangible form the abhorrence of the community for criminal behaviour of this kind and to deter any others like minded from engaging in it. So too the fact that the respondent, whether moved by remorse or not, pleaded guilty to the indictment was a matter his Honour, having regard to his interpretation of the quality and implications of the plea, was entitled to take into account, though not to the extent of reducing the sentence below that which he otherwise might believe to be proper in the circumstances (Reg v Gray [1977] VR 225; Reg v Shannon (1979) 21 SASR 442; Reg v Dowie (1989) 42 A Crim R 234 at p251, per Wright J) nor to such an extent, in a case such as this, that inadequate emphasis was given to the aspect of general deterrence.
At the end of the day one has to ask oneself whether, having regard to all the circumstances of the case, a sentence of three years' imprisonment for the crime under the Criminal Code is so clearly outside the range of sentences which lie within the discretion of the judge at first instance, that this Court can and should intervene. To decline to intervene is not to assert that such a sentence must be regarded as the norm. The Court of Criminal Appeal must acknowledge in every case the wide ambit of the discretion of the judge whose task it is to determine the appropriate sentence.
It has been said that:
"the proper role for prosecution appeals, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." (Per King CJ in The Queen v Osenkowski (1982) 30 SASR 212 at p?[i])
I respectfully agree. In a case where I thought the sentence disproportionate in that sense I said:
"The public interest requires in the circumstances of this case that the gravity of a crime such as this ought to be marked with a penalty which is not manifestly inadequate. That is a sufficient basis to justify the grant of leave to the applicant and the substitution of a sentence considered appropriate. That is not to say that whenever the Crown can demonstrate that a sentence is inadequate it should be granted leave to appeal. As Nettlefold J said in R v Hancocks 46/1980: 'Intervention by this Court' (the Court of Criminal Appeal) 'on the application of the Crown when appropriateness of sentence is the issue should be rare and reserved for clear cases'." (Reg v Causby [1984] Tas SR 54 at pp66–67).
Were this a case in which I could say that the sentence was manifestly inadequate I think the public interest would clearly require us to both grant leave to appeal and substitute an appropriate sentence. However, having regard to all the circumstances, I am not persuaded that the sentence imposed is clearly outside the permissible range.
It has been urged upon us that the fine of $4,000.00 imposed on the second count is also manifestly inadequate. Certainly it was a serious breach of s229(1) of the Companies Code, the maximum penalty for which is a fine of $20,000.00 or imprisonment for five years, or both. The principal advantages to the respondent of using his position as a director of the company to obtain access to its funds were that he did not need to utilise his own funds immediately and that as they came from a hidden source, the funds used would be less likely to be traced. While a separate sentence was imposed on this count, it cannot be considered in total isolation any more than the sentence imposed on count 1 should be considered without recognising that among the circumstances attending conviction and sentence on this indictment, disqualification from holding office as a company director or manager for five years after his release from prison, without the leave of the court, is a consequence. Notwithstanding the respondent's personal wealth, the fine of $4,000.00 was a substantial sum indicating objectively the court's disapproval. On its own it may not have been a very significant personal deterrent to the respondent, but having regard to the consequence of his disqualification from office in corporate affairs, and to the fact that a sentence of imprisonment had been imposed on the first count, I do not think it could be said that the sentence on count 2 was manifestly inadequate.
I would refuse leave to appeal.
File No CCA 25/1990
THE QUEEN v EDMUND ALEXANDER ROUSE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
19 October 1990
I have had the advantage of reading in draft form the reasons for judgment of Cox J I agree with those reasons, and the order he proposes.
In the absence of specific error the fundamental question is what measure should this Court adopt to determine whether the sentence was manifestly inadequate? In most cases, the measure is "what might in experience be regarded as the norm", per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at p310. The norm was described by Street CJ in R v Oliver (Court of Criminal Appeal, Unreported 1980) cited in R. v Visconti [1982] 2 NSWLR 104 at p107 as:
"... the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand."
In the present case, as Cox J has noted, there is no general pattern of sentences that can be used as a measure. The absence of legislative or judicial indicia to mark out the range of sentences appropriate for the crime of offering a bribe to a member of Parliament enlarged the breadth of the discretion which the learned sentencing judge was required to exercise.
There is nothing in the comments made by the learned sentencing judge when passing sentence to indicate that he did not properly take into account and assess all relevant matters. As was said by Adam and Crockett JJ in R v Williscroft & Ors [1975] VR 292 at p300, "ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process".
Similarly the determination of an appeal against sentence not involving specific error requires each appellate judge to instinctively synthesize all the relevant considerations and then measure the sentence imposed against the appropriate criteria to determine whether it is one so manifestly excessive or lenient that, judged by those criteria, it was the product of an erroneous exercise of the sentencing discretion. In a case such as the present the only yardstick is the prevailing community standard, an ephemeral expression and elusive concept. Given the very wide discretion vested in the learned and experienced sentencing judge, his correct expression of the relevant principles and the necessarily subjective assessment of the community standards I find myself quite unable to reach the conclusion that the sentence imposed in this case reflects a miscarriage of the sentencing discretion.
File No CCA 25/1990
THE QUEEN v EDMUND ALEXANDER ROUSE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
19 October 1990
The respondent attempted to interfere with the democratic process in a fundamentally corrupt and arrogant way. Whilst the crime which he committed is fortunately rare in this community a denunciatory sentence was called for to warn other individuals, particularly those who are prepared to use personal wealth for that purpose, that upon detection and conviction for such an offence, a prison sentence is inevitable. The learned sentencing judge adverted to these and all other relevant factors in his comments when passing sentence. He clearly gave the matter careful and anxious consideration. He also had the benefit of able and comprehensive submissions from both the prosecution and the defence.
The Crown contends that the sentence imposed constituted inadequate personal deterrence to the respondent. I do not agree. An immediate and substantial custodial sentence was passed upon a man who had not previously offended. I am left in little doubt that the respondent has received a salutary lesson and that he will not engage in such criminal behaviour again.
My only hesitation has been in concluding that a sentence of three years was sufficient as a general deterrent. Notwithstanding the absence of directly comparable cases in this jurisdiction I take the view that an appropriate sentence would have been imprisonment for five years. However, although it is at the lower end of the scale I am not persuaded that the sentence actually imposed was out of all proportion to the gravity of the crime.
It is trite to observe that this court should only intervene in the clearest cases. A sentencing judge has a wide discretion and this court should not be seen as a tribunal where punishments are refashioned as a matter of course to reflect the predilections or idiosyncrasies of its individual members.
For these reasons I am not persuaded that the sentence upon Count 1 was manifestly inadequate.
As to Count 2 I agree with the reasons of Cox J and have nothing which I can usefully add.
In my opinion this case was of such public importance that leave to appeal should be granted in respect of both counts. However for the reasons given the appeal should be dismissed.
Sic.
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