R v Smith - [2000] QCA 390

[2000] QCA 390

COURT OF APPEAL

de JERSEY CJ
PINCUS JA
WHITE J

CA No 104 of 2000

THE QUEEN

GERALD CHARLES SMITH Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 25/09/2000

JUDGMENT AND BENCH WARRANT

THE CHIEF JUSTICE: The Attorney-General appeals against sentences imposed in the District Court on a former police officer, who pleaded guilty on 17 counts of official corruption and one count of perjury. The offences of official corruption were committed over a substantial period, 1 October 1987 to 1 April 1989.

The respondent was then a sergeant of police, who worked as a telephone interceptor at Police Operations Centre. He would arrange for police officers, tow trucks and emergency services units to attend at the scenes of motor vehicle accidents. Though rightly required to respect a tow truck roster system, designed to ensure a fair distribution of the work among interested tow truck operators, the respondent ignored that system and dishonestly gave relevant information to a friend, one Ready, who was a tow truck operator and who would consequently attend and take up the jobs to the detriment of the other operators on the roster or some of them.

In return, Ready deposited money which could be called a spotter's fee, into the respondent's TAB account. The amounts varied, $30, $70, $90 and $150. The total yield to the respondent was $1,110. The Criminal Justice Commission commenced an investigation into the matter in January 1992 or 1993 - it is not entirely clear from the record.

The respondent gave evidence on oath before the Commission in June 1997, falsely denying having been given the money by Ready in return for the traffic accident information, hence the perjury count. On 20 March 2000 the learned Judge sentenced the respondent to 14 months' imprisonment for the offences of corruption, wholly suspended for an operational period of three years and for the perjury, to two years' imprisonment concurrently, suspended after two months for an operational period of three years.

The respondent served the period of two months actual imprisonment and has now been at large for some four months. The Attorney-General appeals on the grounds that the sentences are manifestly inadequate, fail to achieve proper deterrence and give undue weight to belated co-operation on the part of the respondent with the authorities.

The treatment of the respondent was influenced by the sentences imposed on one McMorrin. McMorrin committed similar offences of official corruption for the benefit of Ready and himself. Like this respondent, McMorrin had no prior criminal history. McMorrin ultimately pleaded guilty to nine charges, from the commission of which he gained $690.

He was sentenced for official corruption to 18 months' imprisonment, wholly suspended for four years. The Criminal Justice Commission inquiry led to the laying of the charges against McMorrin and this respondent and Ready. The Director of Public Prosecutions apparently decided that proceedings against the respondent and Ready should await the determination of the charges against McMorrin. Unfortunately, that took a very long…

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 Smith

Details

AGLC: R v Smith [2000] QCA 390
Case: [2000] QCA 390
Decision Date: 25/09/2000

CaseChat Overview and Summary

In this case, the Court of Appeal considered an appeal by the Attorney-General against sentences imposed on a former police officer, Gerald Charles Smith, who had pleaded guilty to 17 counts of official corruption and one count of perjury. The offences were committed between 1 October 1987 and 1 April 1989, during which Smith, while working as a telephone interceptor at Police Operations Centre, dishonestly provided information about motor vehicle accidents to a friend who was a tow truck operator. In return, Smith received payments into his TAB account, totalling $1,110. Smith also lied under oath before the Criminal Justice Commission regarding the payments he received. The District Court sentenced Smith to 14 months' imprisonment for the corruption charges, wholly suspended for three years, and two years' imprisonment for the perjury charge, suspended after two months for three years. The Attorney-General appealed, arguing that the sentences were manifestly inadequate, failed to achieve proper deterrence, and gave undue weight to Smith's belated cooperation with the authorities.

The Court of Appeal considered the legal issues, including whether the sentences were adequate, whether the sentences properly considered the seriousness of the offences, and whether the sentences properly balanced the mitigating factors against the need for deterrence and denunciation. The Court found that the sentences for the official corruption charges were inadequate, and while the sentences imposed for the perjury charge acknowledged the need for Smith to serve some time in custody, the two-month sentence was inadequate given the seriousness of the offence. The Court noted that the perjury committed by Smith was an attempt to conceal his own corrupt activities and hinder the administration of justice, which must be viewed as particularly serious.

The Court of Appeal varied the sentence imposed for the perjury charge to two years' imprisonment, suspended after six months for an operational period of three years. The Court considered that Smith's having served the two-month term of actual imprisonment ordered by the sentencing Judge should weigh heavily against now returning him to custody to serve the longer term, but the special need to deter crime of this gravity warranted a salutary response. The Court concluded that the interests of justice required Smith to serve an additional four months in custody. The Court of Appeal allowed the appeal to the extent of varying the sentence imposed in respect of the count of perjury, and issued a warrant for the arrest of the respondent.

Orders