R v Stead

[1992] QCA 145

IN THE COURT OF APPEAL	[1992] QCA 145
SUPREME COURT OF QUEENSLAND

C.A. No. 265 of 1991

T H E Q U E E N

v.

NOEL JOHN STEAD

(Appellant)

JUDGMENT - THE COURT

Delivered the twelfth day of June, 1992.

The appellant was tried and convicted in the District Court
at Brisbane on an indictment charging 26 counts of unlawful
possession of a motor vehicle (counts 1 to 26), and a further
four counts of corruptly offering or giving money to public
servants with a view to improperly interfering with the
administration of justice (counts 27, 29, 30) or to facilitating

the registration of a stolen motor vehicle (count 28). He was

sentenced to terms of imprisonment aggregating ten years.

He now appeals against his conviction on all counts and applies for leave to appeal against the sentences imposed.

Of the six grounds in the notice of appeal, those in paras. 2, 3, and 6 were abandoned at the hearing. It was acknowledged that the fate of ground 5 depended on the success of ground 4, and that ground 1 was relevant to proceedings only if a new trial were ordered. That leaves for consideration ground 4, which is in substance that the trial judge should have excluded evidence of a paid police informer and indemnified witness, one Anthony Reisenweber, because "the methods adopted by the police authorities in Operation Trident set too high a price to pay for the administration of justice and such methods should not be countenanced by or have the approval of the Courts".

Operation Trident was a plan developed in 1989 and put into effect by police for infiltrating the ranks of persons engaged in stealing cars in and around Brisbane for the purpose of resale. The object of the Operation was to find out who was receiving and selling the stolen cars, which were usually stripped or broken down into parts and then rebuilt so as to prevent subsequent identification. The plan was devised in September 1989 after Reisenweber was approached by the appellant Stead about disposing of the shell of a stolen vehicle that had been stripped. Reisenweber later spoke to two detectives, who urged him to find out from the appellant the identities of persons to whom the stolen vehicles or parts were being sold. This he was reluctant to do without some protection for himself against possible prosecution, and he agreed to participate only after he was promised he would receive an indemnity against prosecution for his part in the activities that were to follow. This was the genesis of what came to be known in police circles as Operation Trident.

A formal written instrument of indemnity dated 5 October 1989 and signed by the then Attorney-General, Hon. P.J. Clauson, was provided to Reisenweber. It was in the following terms:

"I, Paul Clauson, Attorney-General for the State of Queensland, do hereby undertake that, subject to the performance of the conditions set out hereunder, no prosecution on indictment will be brought or continued against Errol Anthony Reisenweber of Morphett Place, Yatala in the said State in respect of any act reasonably and necessarily done by him for the purpose of assisting police investigations in the course of a police operation code named Operation Trident and I do indemnify the said Errol Anthony Reisenweber accordingly.

Condition

That the said Errol Anthony Reisenweber shall attend and truthfully give evidence in court wherever and whenever required by a prosecuting authority of the said State in proceedings arising out of the said operation."

The indemnity was admitted as ex.14 at the trial. By the time of its delivery to Reisenweber he had already accompanied the appellant on their first joint expedition to steal a vehicle, which was broken into by Stead and stolen on about 20 September 1989 from the Sunnybank Shopping Centre. It is the subject of count 7 in the indictment. The stolen vehicles that were the subject of the first six counts were already in the appellant's possession at the time Reisenweber came on the scene. The appellant needed a secure place at which to strip the vehicles down, and for this purpose Reisenweber provided a shed in the back yard of his premises at Yatala. However, before the first vehicle was stripped in that shed the police, with Reisenweber's assistance, secretly installed a video camera in the shed and the stripping of that and subsequent vehicles was recorded on film.

The vehicles the subject of counts 8 to 25 were stolen by the appellant in circumstances similar to those described. Reisenweber was present on each occasion. He was not present when the vehicle the subject of count 26 was taken. However, he helped to dispose of it. With the assistance of Reisenweber, the police had in the meantime also insinuated into the operation a policeman named Carmont. He had mechanical skills, and was employed to drive stolen vehicles back to the shed, where he assisted in the process of stripping them down and obliterating identification marks. He worked mainly with another car thief named Partridge, but was able to give some evidence of the appellant's part in events.

From time to time the appellant found he had more shells of vehicles than he could comfortably accommodate. On such occasions Reisenweber would arrange to have the shells removed from the shed overnight by the police, informing the appellant that he was disposing of them. So matters continued until the operation was terminated on 2 April 1990 with the arrest of the appellant. The offences charged in counts 27, 29 and 30 related to attempts by the appellant to bribe police officers to destroy evidence intended to be used as exhibits in prosecuting him; that in count 28 related to another bribery attempt directed to gaining false registration of one of the vehicles.

As mentioned, the vehicles the subject of counts 1 to 6 had already been stolen before the arrangement in September 1989 that led to Operation Trident. As to those the subject of counts 7 to 25, it is clear that the case against the appellant at trial was one in which the acts in question had been carried out under the cover of Operation Trident, in which police and police agents had participated extensively by assisting, directly or indirectly, in the unlawful activities of stealing, stripping down, and disposing of vehicles. The vehicles in question were the property of ordinary citizens, who had left them in parking places at shopping centres and the like, from which they were stolen. There was evidence that a total of some 68 vehicles were taken in this way in the course of the Trident operation. The cost to the owners and insurers in terms of financial loss, time wasted and inconvenience suffered, to say nothing of the distress at having their cars stolen, must have been vast. Some at least is traceable to the action of the former Attorney-General in providing the formal indemnity to Reisenweber, and to police encouragement and participation in the car stealing activities that followed.

Confronted by similar evidence about Operation Trident, a Court of Criminal Appeal, comprising Macrossan C.J., de Jersey and Dowsett JJ., recently decided that a conviction for a single count of unlawful possession of a motor vehicle should be set aside, and that judgment and verdict of acquittal should be entered in favour of the appellant in that case : R. v. D'Arrigo (C.A. No. 220 of 1991 : 17 Dec. 1991). On the appeal before us Mr Miller Q.C. challenged the correctness of the decision and invited this Court not to follow it; alternatively, he submitted that the decision in that case was on its facts distinguishable from this. On behalf of the appellant, Mr Hanson Q.C. submitted that D’Arrigo was correctly decided; that it ought to be followed; and that, as the evidence in both cases was the same or similar, the Court should apply the decision and allow this appeal.

The decision in D'Arrigo involved two steps. The Court held that the indemnity in the form of ex. 14 was invalid; and also, or in consequence, that the evidence of Reisenweber ought not to have been admitted at the trial of D'Arrigo. Although it was not entirely clear to us on this appeal whether or not Mr Miller Q.C. challenged both or only the second of those steps, it now appears from a supplementary written submission that the Crown accepts the invalidity of the indemnity. However, because the character of that invalidity and the reasons for it bear upon the question whether at the trial of this appellant the evidence of Reisenweber ought to have been excluded, we propose briefly to say why that indemnity was invalid.

On this point the reasons in the separate judgments of their Honours are not identical, although they lead to the same result. Macrossan C.J. considered that the Law Ministers of the Crown "are not above the law and are not possessed of the dispensing power which the terms of the indemnity ... would imply". Both de Jersey and Dowsett JJ. regarded it as inconsistent with the "rule of law" for the Executive to grant a purported indemnity in respect of criminal acts to be committed in the future; it was, so each of them held, contrary to the implied prohibition in s.7 of the Criminal Code against aiding, counselling or procuring offences, and so was outside the Crown prerogative of pardoning offenders. de Jersey J. also condemned the terms of the indemnity because of its potential to foster disputes about its true scope or ambit. What, he asked, is to be regarded as "reasonably and necessarily done" to assist police investigations? Having regard also to the uncertainty implicit in the description "Operation Trident", it is not possible to define or confine the limits of the indemnity being given to Reisenweber.

There are cogent reasons for holding the indemnity to be invalid. The common law recognised the existence of a power to pardon as an aspect of the royal prerogative and one that was capable of being delegated. What was disputed over a long period was the wider claim by the Crown to exercise a power of pardoning an offence before its commission. It implied an authority in the Crown to dispense with the application of the law to a particular individual or to suspend the operation of laws in general. Attempts to invoke such a power led directly to the Revolution of 1688 and the adoption of the Declaration of Right. Articles 1 and 2 condemned as "illegal" the purported exercise of the power of suspending or dispensing with laws, "as it hath been assumed and exercised of late". It was the insertion of these qualifying words that is said to have preserved the prerogative of the Crown to pardon offences after they had been committed: Taswell-Langmead's English Constitutional History, at 601, n.(o); 9th ed. 1929. Enacted by Parliament as s.1 of the statute 1 Will. & Mary, sess.2, c.2, the Bill of Rights 1689 contained in s.2 the further provision that "no dispensation ... of or to any statute or any part thereof shall be allowed, but that the same shall be held void and of no effect ...".

The prerogatives or powers of Her Majesty are now exercisable in respect of Queensland in general by the Governor on the advice of the Premier of the State : see ss.7(2) and 7(5) of the Australia Act 1986 (Cth) and of the Australia Act 1986 (U.K.), incorporated in the second schedule to the Australia Acts (Request) Act 1985 (Qld.). It is true that 8(b) of the Constitution (Office of Governor) Act 1987 authorises the Governor to grant a pardon to an offender in respect of an offence; but the words "pardon", "offender" and "offence" imply that the offence is one that has already been committed and not one to be committed in the future. In any event, any claim in right of the Crown in Great Britain to dispense with laws, whether by pardoning in advance or otherwise, was brought to an end in 1689, and it is not possible for such a power to have been transmitted to the Crown in respect of Queensland by legislation, such as that we have mentioned, enacted only in 1985, 1986 or 1987.

It follows that, while the Governor acting on the advice of the Premier has power to grant a pardon in respect of a past offence, neither the Governor, nor any delegate from him or her, has power to suspend or dispense with the laws or their execution, or with any statute: cf. Fitzgerald v. Muldoon [1976] 2 N.Z.L.R. 615, 622-623. The attempt to do so by what purported to be an indemnity against prosecution for future offences granted by the former Attorney-General in favour of Reisenweber on 5 October 1989 therefore was, to use the words in ss.1 and 2 of the Bill of Rights, "illegal" and "void and of no effect". Hence the indemnity was incapable of prevailing against the provisions of s.7 of the Criminal Code making a person criminally responsible for an offence committed by another that was counselled or procured or assisted by that person.

The consequence in law is that for acts carried out by in the course of Operation Trident Reisenweber derived no immunity from the purported indemnity. The indemnity did not affect to deprive any of the acts to be done of their criminal character.

It simply promised, although invalidly, that Reisenweber would not be prosecuted for what he did in the course of the police "operation". It is said that, as a result, his evidence about those matters ought not to have been admitted at the trial. Apart from his testimony there is evidence that is capable of sustaining the appellant's convictions on the first six and the last four counts. Nevertheless, Reisenweber was obviously an important witness for the prosecution at the trial, and the exclusion of his evidence would probably have led to a different result in most if not all the other charges involved.

In D'Arrigo the submission was advanced that Reisenweber was an accomplice whose evidence called for a warning in terms of s.632 of the Code. On this matter Macrossan C.J. and de Jersey J. differed in their views; but the question is not one raised in the present appeal. The Chief Justice in D'Arrigo thought the evidence of Reisenweber was "so thoroughly bound up with the law enforcement authority's participation in an illegal scheme and so completely arose out of it", that the trial judge in that case ought to have considered whether the evidence should have been excluded as an expression of the Court's "disapproval of the extent of the illegality involved in the collection of the evidence against the appellant". It was held by de Jersey J. that the illegality in which Reisenweber was involved by the State authority was "of such serious proportions that the Court should not countenance reliance by a jury on evidence obtained by means of it"; and by Dowsett J. that the evidence against the appellant in that case "was obtained by a process so tainted by illegality as to dictate its exclusion".

In D'Arrigo the authority that was principally relied upon, explicitly in the reasons of de Jersey and Dowsett JJ., and implicitly in those of the Chief Justice, was the decision of the High Court in Bunning v. Cross (1978) 141 C.L.R. 54, or more accurately certain passages in the joint reasons of Stephen and Aickin JJ., particularly at 74-75, with which Barwick C.J. (at 65) stated his agreement. Referring to the earlier decision in R. v. Ireland (1970) 126 C.L.R. 321, Stephen and Aickin JJ. said (141 C.L.R. 54, at 74):

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."

The decision in Ireland concerned the exercise of the general judicial discretion at the trial of criminal proceedings to exclude evidence of a confession obtained from the accused by unlawful means. In Bunning v. Cross the question was whether the discretion had been correctly exercised to exclude breathalyser evidence obtained in contravention of statutory safeguards or conditions precedent to obtaining it.

On behalf of the Crown in this appeal Mr Miller Q.C. contended that what was said in Bunning v. Cross was directed solely to the case in which the rights of the accused himself had been infringed in obtaining the evidence sought to be excluded, and that their Honours were in what they said not intending to sanction a broader power, based on considerations of public policy, to exclude evidence at the trial. Since, in what was done in the course of Operation Trident in the present case, there had been no infringement of any right of the appellant, but only of those whose cars were stolen, there was, he submitted, no power in the trial judge to exclude the evidence against the appellant even if it was obtained by unlawful means.

The supplementary written submission appears to depart from the submission made both in the Crown's written and in Mr Miller's oral submissions. It appears to retain, merely as one of the matters relevant to the exercise of the discretion to exclude evidence, the absence of any infringement of any personal right of the appellant. In Bunning v. Cross, following the passage already referred to, Stephen and Aickin JJ. went on (at 74-75):

"This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.

Since it is with these matters of public policy that the discretionary process called for in Ireland is concerned it follows that it will have a more limited sphere of application than has that general discretion to which Lord Widgery refers, which applies in all criminal cases. It applies only when the evidence is the product of unfair or unlawful conduct on the apart of the authorities (or, as Dixon C.J. put it in Wendo's Case unlawful or improper conduct). Moreover it does not trench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called 'real evidence', such as articles found by search, recordings of conversations,

the result of breathalyzer tests, fingerprint

evidence and so on."

It is possible to read both this, and a further passage that appears at 75 in Bunning v. Cross, in the sense contended for by Mr Miller in his oral submissions. That was, however, plainly not the view of their Honours' reasons that commended itself to members of the Court of Criminal Appeal in D'Arrigo. We are also persuaded that such a restricted view of those reasons is not justified. What their Honours intended to recognise was the existence of a specific discretion on the part of the trial court to exclude evidence obtained by unlawful or improper conduct, not on the ground of unfairness to the accused or infringement of any right of the accused, but for reasons of "high public policy". Involved in deciding whether or not the evidence is to be admitted is a process of balancing the competing interests, on one hand, of bringing the wrongdoer to conviction, and on the other of "the undesirable effect of curial approval, or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law" (141 C.L.R. 54, 74).

The principle stated in Bunning v. Cross does not derive from the English common law but "is nearer to the rule adopted in Scotland": Cleland v. The Queen (1982) 151 C.L.R. 1 at 8 per Gibbs C.J. His Honour could have added Ireland also because the same rule appears to be accepted there as was recognised in the joint judgment in Bunning. The point at which the Scottish and Irish rules tip the balance in favour of the exclusion of evidence appears to be, at least generally, where its admission would allow the interest of the State to be "magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods": Lawrie v. Muir (1950) S.L.T. 37, at 39-40, quoted in the joint judgment in Bunning at 76. But unless that is the case a trial judge should not be diverted from the issue before him "or permit it to be wrongly decided for the sake of frustrating a police illegality, or drawing public attention to it": The People v. O'Brien [1965] I.R. 142, at 167. Some of the circumstances which, in the last mentioned case, it was said may need to be considered are the nature and extent of the illegality, whether it was intentional or unintentional, and if intentional whether it was the result of an ad hoc decision or represented a settled or deliberate policy; whether the illegality was of a trivial and technical nature or a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms; whether there were circumstances of urgency or emergency which provide some excuse for the action; and the nature of the crime being investigated: at 160.

The joint judgment in Bunning referred to similar considerations, the first being that the "real evil" was "a deliberate or reckless disregard of the law by those whose duty it is to enforce it": at 78. The second, which their Honours thought would generally be considered only if the unlawfulness was not in deliberate or reckless disregard of the law, was the cogency of the evidence; whether the illegality affects its cogency, and whether equally cogent evidence untainted by any illegality is available: at 79. The third was the ease with which the law might have been complied with in procuring the evidence in question: at 79. And the fourth was the nature of the offence charged, that is its seriousness and prevalence: at 80.

Modern statements of the exclusionary rule in the United States, though related to the constitutional right of privacy guaranteed by the Fourth Amendment, appear to be based primarily upon the need to deter unlawful police behaviour, with balancing factors similar to those considered in Bunning v. Cross. See for example the joint judgment of the Supreme Court in United States v. Payner, 447 U.S. 727, 734 (1980):

"Indeed, the decisions of this Court are replete with denunciations of wilfully lawless activities undertaken in the name of law enforcement. But our cases also show that these unexceptional principles do not command the exclusion of evidence in every case of illegality. Instead, they must be weighed against the considerable harm that would flow from indiscriminate application of an exclusionary rule.

Thus, the exclusionary rule 'has been restricted to those areas where its remedial objectives are most efficaciously served'. United States v. Calandra, 414 U.S. 338, 348 (1974). The Court has acknowledged that the suppression of probative but tainted evidence exacts a costly toll upon the ability of courts to ascertain the truth in a criminal case. Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury. After all, it is the defendant, and not the constable, who stands trial."

See also the factors considered in Canada in determining whether under s.24(2) of the Charter of Rights and Freedoms, the admission of evidence would bring the administration of justice into disrepute: Collins v. R. (1987) 33 CCC (3d) 1, at 18-21; R. v. Black (1989) 50 CCC (3d) 1, at 16.

At the trial of the appellant in the present case the admission of the evidence of Reisenweber was not originally objected to by Mr Daveney of counsel who appeared for the appellant. However, at the close of the Crown case, he requested the trial judge to withdraw the charges from the jury "because of the way the police investigation was conducted, because of the use of agents provocateur, because of the use of an undercover agent ... and because, in respect of many of the charges, that person is the only person who can give cogent evidence against my client". Reference was made to Ireland and to the unfairness of letting the evidence go before the jury or of allowing the trial to continue; but the submission was more widely based than that, because counsel also contended that "the guilt or innocence of my client isn't at issue. What is is whether the courts will countenance behaviour such as has been undertaken in this case, the wholesale stealing and stripping of over 100 motor vehicles ... the cost to society is so great ... that the courts should send a clear message that this type of behaviour will not be tolerated."

The point now taken on appeal was thus plainly raised by Mr Daveney at the trial. The learned trial judge disposed of it shortly, saying that he was not convinced that there was "any basis on which he should refuse to allow these matters to go to the jury". It is perhaps not perfectly clear that his Honour fully apprehended the breadth of the submission that is now made on behalf of the appellant. The trial took place in late August and early September 1991, which was before the decision in D'Arrigo was delivered. Nevertheless, if on a review of the factors that ought to have been considered, his Honour's conclusion to reject the application was correct, the precise reason he gave for rejecting it cannot affect the outcome of this appeal. There will not have been any such substantial miscarriage of justice as would attract the intervention of the Court.

We turn now to the factors which, in our view, were relevant to the exercise of the court's discretion to exclude Reisenweber's evidence.

The first of these is that in no sense could it have been
said that the conduct of the Attorney-General, the police, or
Reisenweber was in deliberate or reckless disregard of the law.
The Attorney granted the indemnity upon advice and there is no
suggestion that any of those who acted under it had any doubt
as to its legality. Its illegality having been established,
it could not be suggested as even a remote possibility that,
with knowledge of that illegality, a future Attorney may

purport to grant a similar indemnity. Exclusion of the

evidence will therefore have no useful deterrent function.

Secondly, Reisenweber's evidence here was undoubtedly cogent. Without it, a guilty man will probably go free of the majority of the offences for which he was tried and convicted. Whether it would have been possible to obtain evidence against the appellant in respect of those or similar offences without Reisenweber's involvement is a matter of speculation; but, given the professionalism of the appellant, there can be no doubt that, without having someone like Reisenweber involved with and trusted by the appellant, the task of the police in detecting and then proving commission of the offences by the appellant would undoubtedly have been very much more difficult.

The prevalence of such offences and the obvious difficulty of detecting professional organised crime supports this conclusion.

Thirdly, the seriousness of the offences having regard both to their prevalence and their effect upon the community is itself a factor. Illegality should be more readily excused in the detection of serious crime.

Fourthly, this is not a case of entrapment in the sense of the appellant having been induced to commit a crime. He was engaged in the criminal activity of stealing cars in a business-like way before Reisenweber became involved. The first five counts attest to this. There is no consideration of fairness to the appellant that dictates exclusion of the evidence under challenge.

It is difficult to see any public benefit in excluding the evidence in the present case. None of those whose cars were stolen by the appellant will feel any satisfaction in seeing him go free. Nor, we imagine, would any other car owners or indeed any right-minded citizens. On the other hand, civil remedies for authorising the tortious conversion of so much valuable property are available to those who choose to use them.

In our opinion, therefore, his Honour rightly admitted Reisenweber's evidence.

Turning to the matter of sentence, the appellant was ordered to undergo terms of imprisonment for six years on each of counts 1 to 6 to be served concurrently, and of imprisonment for four years on each of counts 7 to 30 also to be served concurrently, but cumulatively upon the sentences of six years for counts 1 to 6. The result was an effective sentence of imprisonment for 10 years.

Counts 1 to 26 were charges under s.408A of the Code of unlawful possession of a motor vehicle with intent to permanently deprive the owner; in relation to each of counts 1 to 23 a circumstance of aggravation was charged and found in that the appellant had wilfully removed parts from the motor vehicle. The maximum sentence in those instances is 12 years' imprisonment. Apart from that circumstance it is 10 years. Counts 27 to 30 involved offences of official corruption under s.87 of the Code, for which the statutory maximum is seven years' imprisonment.

In respect of counts 1 to 23 the appellant was thus sentenced to terms of imprisonment not far short of the statutory maximum, although these and the other penalties for offences against s.408A were made concurrent. It was the offences against s.87 that were made cumulative. The offences under s.408A were committed in the course of what was plainly a continuous commercial enterprise of car thieving and disposal involving vehicles worth, in aggregate, more than half a million dollars. The enterprise so closely resembled a business that on occasions, vehicles were stolen to fulfil "orders" received for types of vehicles of that make. The series of offences in counts 1 to 6 were committed before Operation Trident was put into effect, and came to light in the course of searches of the appellant's property at Marsden on 4 September 1989 and of a property at Park Ridge, which uncovered a quantity of stolen vehicles and parts. The appellant was charged with the offences in those six counts, and it was while he was on bail awaiting trial in respect of them that he proceeded to commit the offences in counts 7 to 26, which were the subject of Operation Trident. Confronted by all those charges of offences under s.408A or the prospect of being prosecuted for them, he then engaged in the corrupt attempts to pervert the course of justice that are the subject of the later counts in the indictment.

The appellant is a man aged 35 years whose record shows a previous conviction (5 charges) for the offence under s.408A with circumstances of aggravation, together with three convictions for obtaining by false pretences and three for stealing. For these he was sentenced in August 1985 to imprisonment for three years. There are further recorded convictions in respect of dangerous driving in 1989 and 1990, as well as one of wilful damage and another of resisting police. Since 1985 or before, his record thus discloses a persistent pattern of offending, frequently while on bail, and particularly in relation to motor vehicles. In sentencing the appellant his Honour took these matters into account, as well as the circumstance that the appellant was one of the ringleaders of a criminal network involved in the wholesale theft and disposal of motor vehicles; that the appellant had even attempted to eliminate a competitor in the same unlawful activity, so as to monopolise the sale of stolen parts; and that he had shown no signs of remorse for his actions. It was thus not possible to make any allowance in the sentence for co-operation with the police or for pleading guilty to these offences. The appellant's whole attitude was, as his Honour observed, one of supreme contempt for the law and for the rights of other people.

His Honour had before him statistical evidence of recent increases in car stealing in Queensland. In the year 1989/1991 the total number of vehicles stolen was 11,602; in the following year it rose to 16,085, to which the appellant's activities contributed a part. In this context, it was not improper, having regard to all the circumstances recounted here, for the judge to impose sentences approaching the statutory maximum. It was nevertheless submitted that the effective sentence in this case was "out of line" with that imposed in R. v. Hoad (C.A. 62 of 1989), in which an effective sentence of 11 years' imprisonment was reduced on appeal to seven years. In that case there was a total of 85 offences under s.408A, although the appellant there appears to have confined his role to that of receiving and disposing of vehicles, which in the end were recovered. He had in his favour the benefit of a plea of guilty, which it was accepted saved the time and expense of a criminal trial that would otherwise have taken six months. His previous record was good, and the success of his appeal was mainly, if not entirely, due to the circumstance that the sentences had been made cumulative in respect of what was held to be essentially a single series of offences.

His Honour considered the case of Hoad to be quite different. The other case relied on by the appellant in this respect is R. v. Partridge (C.A. 108 of 1991). The name of that offender has already been mentioned in the course of the present appeal. He pleaded guilty to 72 offences, of which 52 were offences under s.408A, as well as other offences, including seven counts of official corruption and two of attempting to pervert the course of justice. The only real mitigating factors were his plea of guilty and that, so far as appears, he had only a limited previous criminal history. The effective sentence was seven years' imprisonment comprising five years for a series of offences extending from August 1987 to December 1988, and a further series in 1989 committed during Operation Trident. The appeal succeeded on the ground that those sentences ought not to have been made cumulative. Partridge may have been fortunate, and, as already noted, there are some features that distinguish his case from this.

In sentencing the present appellant his Honour took careful account of the decisions in each of the cases referred to. Having done so he nevertheless imposed the sentences appealed against. In our opinion no error is discernible in the principles applied in sentencing this appellant. Having regard to his criminal history and the other adverse circumstances adverted to, we are unable to conclude that the sentences imposed on the appellant were manifestly excessive.

Without expressing a concluded view on the correctness of
the decision in D'Arrigo, we are of opinion that the evidence
of Reisenweber was rightly admitted at the trial in this case.

We would dismiss the appeal against conviction and refuse

the application for leave to appeal against sentence.